In all the treaties entered into by the United States whereby territory was acquired, prior to that with Spain in 1898, it was provided either that the inhabitants of the ceded territories remaining therein should be admitted as soon as possible to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, or that they should be "incorporated in the Union of the United States," or both. It cannot, however, be said with certainty, as has been maintained by some, that it was due to these provisions that the inhabitants of the ceded territories were collectively naturalized, for this point has never been squarely passed upon by the Supreme Court. The undoubted purpose and the probable legal effect of these provisions was only to create an obligation on the part of the United States not to discriminate civilly against these peoples, and, when the conditions should warrant. To confer upon them full political privileges. The determination when this time had arrived was left to the discretion of Congress. Provisions similar to those of which we have been speaking are almost always inserted by all nations in treaties of cession at the instance of the ceding power, as a matter of equity, it being but just that in handing over to the control of another power citizens of its own that, as far as possible, a State should obtain a guarantee that they should not be civilly or politically oppressed.

2 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103.

By these treaties of cession entered into by the United States, the inhabitants of the ceded territories did become, however, United States citizens under the general rule quoted above, because those treaties contained no stipulations to the contrary.

In the treaty of peace with Spain which provided for the cession to the United States of Porto Rico, Guam, and the Philippines we find for the first time appearing a provision expressly affirming, that the cession of the islands is not to operate as a naturalization of their native inhabitants, but that the determination of their civil rights and political status is to be left to the subsequent judgment of Congress. Spanish subjects, natives of the Iberian Peninsula, but resident in the islands, are, however, given the right to elect whether or not they will retain their old citizenship or become American subjects.3

3 The provisions of the treaty upon these points are as follows: "Spanish subjects, natives of the peninsula [of Spain] residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making before a court of record within a year from the date of exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.

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

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 determine 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 supreme 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 allegiance 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