itants of these possessions of the United States are subject to its obedience and are, therefore, its nationals or subjects.

The negotiators of the treaty with Spain undoubtedly understood the treaty as making all the inhabitants who did not elect to remain Spaniards, American citizens or nationals.

The Spanish commissioners claimed that

"The American commission refuses to acknowledge the right of the inhabitants of the countries ceded or relinquished by Spain to choose the citizenship with which, up to the present, they have been clothed. And, nevertheless, this right of choosing, which is one of the most sacred rights of human beings, has been constantly sacred since the day when man was emancipated from serfdom. This sacred right has been respected in treaties of territorial cession concluded in modern times."

Annex to Protocol No. 21, treaty of peace between United States and Spain of Dec. 10, 1898.

To this the following reply was made:

"The American commissioners do not so understand the article upon the subject of citizenship submitted by them as a substitute for the article proposed by the Spanish commissioners. An analy sis of the article will show that Spanish subjects, natives of Spain. are allowed a year's time in which, by the simple process of stating in a court of record their intention so to do, they may preserve their allegiance to Spain.

"Such persons have the fullest right to dispose of their property and remove from the territory, or, remaining, to continue to be Spanish subjects or elect the nationality of the new territory.

"As to natives, their status and civil rights are left to Congress, which will enact laws to govern the ceded territory. This is no more than the assertion of the right of the governing power to control these important relations to the new government. The Congress of a country which never has enacted laws to oppress or abridge the rights of residents within its domain, and whose lors permit the largest liberty consistent with the preservation of order and the protection of property, may safely be trusted not to de part from its well-settled practice in dealing with the inhabitants of

these islands."

Annex 1 to Protocol No. 22, treaty of peace between United States and Spain of Dec. 10, 1898.

In view of these assertions of the treaty makers, is it reasonable to claim that this treaty was intended to empower Congress for the first time in its history to govern “dependencies" without regard to Constitutional

immunities?

But the learned counsel for the Government, if we understand him correctly, claims that annexation of territory by mere treaty cession which makes no provision for conferring citizenship upon the inhabitants leaves them aliens until Congress chooses to enact otherwise.

The Louisiana, Florida, Mexican, and Alaskan treaties provided that the inhabitants shall be admitted to the enjoyment of the rights and privileges of citizens of the United States, and from this he infers that without such stipulation they would not have been citizens.

As to Louisiana, Florida, and Alaska, the stipulation evidently refers

to the full citizenship incident to statehood; not to "naked citizenship," to borrow Justice Curtis' phrase, or, as we have termed it, "nationals." The Alaskan treaty is peculiar in that it excepts uncivilized tribes. "The inhabitants of the ceded territories, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they prefer remaining in the ceded territory they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." (Alaska Treaty, Art. III.)

In that treaty remaining three years was considered equivalent to renouncing the Russian allegiance.

The Attorney-General considers this privilege of election a suspension of citizenship by the United States, and finds in this proof that the Constitution did not affect the question. (Brief, p. 58.) It is respectfully submitted that the inhabitants of Alaska had been Russian citizens or subjects; that it is usual under the general postulates of international law to allow persons to retain the allegiance to their former masters, if they so desire. The provision in the Alaskan treaty simply gave the inhabitants three years to decide whether they would retain their former allegiance. Their citizenship was not suspended; they were Russian citizens until they chose to become American citizens.

This treaty is analogous to the treaty with Spain. The Spanishborn inhabitants of the ceded islands are allowed one year in which to decide whether they wish to retain their former citizenship. In case they should retain it, their allegiance was due to Spain and their reliance for protection was upon her. Should they not retain it, they then became United States nationals. (Treaty of Paris, Art. IX.)

The other inhabitants of the islands have not been accorded this privilege for reasons fully set out in the documents of the Peace Commission. (Senate Doc. 64, 1898.)

As far as the United States was concerned, the latter people could not remain like natives of the peninsula, Spanish subjects, but became at once United States nationals. That the United States might have given them power to remain Spanish subjects is doubtless true, but it did not choose to do so.

Pothier thus lays down the principle, says Mr. Lawrence, in reference to the acquisitions which had been made by France before the French Revolution:

"When a province is united to the Crown, its inhabitants must be regarded as Frenchmen whether they were born before or after the union."

Pothier carries the principle so far as to say:

"There is every reason to think that the foreigners who are established in these provinces, and who have there obtained, according to the laws in force, the rights of citizenship, must, after the annexation, be considered citizens equally with the native inhabitants of those provinces, or, at least, with foreigners naturalized in France."

And applying the same principle in the cases of loss and restoration of territory, he says:

"When a province is dismembered from the Crown, when a conquered country is restored by the treaty of peace, the sover

eignty over the inhabitants is changed. Citizens at the time of the conquest or since the conquest, or if born since the union, citizens by their birth till the dismemberment of the province, become foreigners." Traité des Personnes, Part I, tit. 2, sec. 1, cited by Lawrence, Appendix to Wheaton, 897.

The treaty of April 26, 1798, for the incorporation of the Republic of Geneva with the French Republic, declared that the Genevese who inhabited the city and territory of Geneva, as well as those who were in France or elsewhere, became and were native-born Frenchmen (français nés), and the treaty for the annexation of Mulhausen also declared that the citizens and inhabitants of Mulhausen and its dependencies became and were native-born citizens (français nés). Referring to these treaties, Mr. Lawrence says:

"It is not, however, understood that these special declarations varied the conditions of the inhabitants of these small republics from that of the numerous countries and provinces which were incorporated with France between 1789 and 1814.

"These relations established as to Geneva and Mulhausen were applicable to all the annexations.

"They were the immediate consequences,' says Foelix (Revue de Droit Français et Etranger, Tom. II, page 328, Naturalization Collective), of every union of territory, according to the existing law of nations, and since it is no longer the custom, even after the conquest of a country, to reduce its inhabitants to a condition inferior to that of the conquering country.""

This custom which, as Foelix says, has fallen into honorable disuse, is apparently what the Attorney-General desires to revive by placing Porto Ricans on the footing of the "1,135 free people of color in New Orleans in 1803," that is, at the time of its cession to the United States. (P. 59 of his brief.)

The dismemberment of populated territory from a State on the one hand, and its incorporation into a new nationality on the other, operate as a collective naturalization ipso facto.

"Annexation of territory, either by peaceful cession or as a result of war, invariably carries with it a change of nationality. This is what is called collective naturalization." Pradier Fodéré, Droit International Public, ed. 1885, Vol. III, page 721.

"Treaties of annexation generally give an option to individuals owing allegiance to the State whose territory is annexed. This option may be manifested either by emigration simply, or by a declaration of intention accompanied by emigration; sometimes a simple declaration is made without resorting to emigration. any case inaction or silence imports adhesion to the new order of things-tacit accceptance of the nationality newly imposed.” (Ibid. 1, page 723.)

In

It is a doctrine of natural law that conquest or peaceful cession relieves the inhabitants from all bonds of allegiance towards the sovereign of the passing territory and enjoins fidelity on their part to the new régimé. In fact, the inhabitants having had the choice of leaving the country or continuing their residence therein, it is but just that their permanent sojourn in the annexed territory should be construed as a tacit declaration of their fidelity to the conqueror." Calvo, Droit International Theorique et Pratique, ed. 1896, Vol. IV, page 394.

Foelix, cited by Lawrence, supra, says that "change of nationality results either by mere operation of law or from the act of the individual." Of the former he says, "cession of territory furnishes another example.'

"There can be little or no doubt," says Halleck, "that the inhabitants of Florida, as intimated by Chief Justice Marshall, were entitled without the treaty stipulation, to the privileges, rights, and immunities' of citizens in this more extended sense of the term; but their right to be incorporated in the Union, and participate in political power, was derived from the treaty and not a necessary consequence, under the law of nations, of the transfer of their country and allegiance." (Halleck's Int. Law, $13, p. 824.)

"A collective naturalization of all the inhabitants is effected when a country or province becomes incorporated in another country by conquest, cession, or free gift."

Phillimore, Vol. I, p. 449, ed. 1879.

The treaty thus confers upon the inhabitants the "nationality of the territory to which they belong.

As to Porto Rico, that nationality is of course the United States. Boyd v. Thayer (143 U. S., 162).

Porto Rico is not a country in the political sense, and hence can have no independent nationality of its own.

International law knows no State or nation of Porto Rico. It is not a member of the family of nations. Its inhabitants can only be either aliens, . e., persons owing allegiance to a sovereignty other than the United States, or nationals, i. e., (passive) citizens of the United States. Congress may of course naturalize, by annexing territory, the inhabitants, and, as we have demonstrated, mere cession and transfer of territory has this effect without special stipulation in the treaty.

A treaty provision to that effect is therefore merely declaratory of the rule of international law. As was said by the present learned Chief Justice:

"Persons not thus subject to the jurisdiction of the United States at the time of birth can not become so afterward except by being naturalized either individually as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired." (Wong Kim Ark., 169 U. S.) "A person born out of the jurisdiction of the United States can only become a citizen by being naturalized either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals as in the ordinary provisions of the naturalization acts." (Wong Kim Ark., 169 U. S., 702.)

As to persons born subsequent to the acquisition, the question is even clearer. The XIVth amendment has enacted a rule of law into the Constitution which overrules treaties and legislation.

Prior to such amendment had the Government desired to violate the common-law rule adopted by the United States, it could have declared H. Doc. 509-36

in a case like that of Porto Rico that all of the inhabitants should remain citizens of Spain. The territory would none the less have been a part of the United States, but its inhabitants would have been aliens and subjects to a foreign jurisdiction. Such an incongruous result would, in the absence of Constitutional restriction, have been possible. The inhabitants of such territory would then have owed temporary allegiance to the United States such as aliens within its jurisdiction now owe it; but because a part of the territory is popu lated by aliens that territory is none the less within the geographical boundaries of the United States. The question could only arise as to inhabitants born before the cession, but as this treaty has provided otherwise, the question is academic.

The fourteenth amendment enacting the common-law rule of citi zenship into the dignity of constitutional provision, settles the status of persons born since the cession.

"The fourteenth amendment of the Constitution, in the declaration 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 States wherein they reside,' contemplates two sources of citizenship, and two only-birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States and needs no naturalization." (Wong Kim Ark., 169 U. S.)

The main precedent, however, upon which the learned AttorneyGeneral seems to rely is that of the position of the free negroes before the civil war; because he says:

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"Suppose a cession of a small island with half a dozen inhabitants must the United States agree to permit them to remain and accept them as citizens? It might be the purpose of the Government to use the island solely as a fort or military reservation And if such restriction on its right to acquire exists. how does it resist the rights of uncivilized tribes in Alaska and in the Mississippi and New Mexican regions to be counted also as citizens? Or the 1,135 free people of color' in New Orleans in 1803, to say nothing of the slaves."

The learned Attorney-General then proceeds to show from the Dred Scott decision that free negroes were not citizens. We may admit that the free negroes before the war and during the civil war occupied an anomalous position.

The case of Dred Scott simply held that the negro was so low in the scale of humanity that the States could not, by conferring freedom upon him, make him capable of becoming a citizen of the United States in the broad or passive sense. passive sense. He was, therefore, neither citizen nor subject, but a being who, under the Constitution, was something dif ferent and apart from the rest of humanity.

His anomalous position was thus described by Chief Justice Taney:

"In the opinion of the court the legislation and the histories of the times and the language used in the Declaration of Independence show that neither the class of persons who had been imported

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