in the territory after this transfer, they are deemed to have elected to become its subjects, and thus have consented to the transfer of their allegiance to the new sovereignty. If they leave, sine animo revertendi, they are deemed to have elected to continue aliens to the new sovereignty. The status of the inhabitants of the conquered and transferred territory is thus determined by their own acts. This rule is the most just, reasonable, and convenient which could be adopted. It is reasonable on the part of the conqueror, who is entitled to know who become his subjects and who prefer to continue aliens; it is very convenient for those who wish to become the subjects of the new State, and is not unjust toward those who determine not to become its subjects. According to this rule, domicile, as understood and defined in public law, determines the question of transfer of allegiance, or rather, is the rule of evidence by which that question is to be decided.

Turning to the treaty of peace with Spain (1898), we find that Article IX provides as follows:

Spanish subjects, natives of the Peninsula, 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 foreignIn 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 the 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 rights and political status of the native inhabitants of the Territories hereby ceded to the United States shall be determined by Congress.

ers.

Clearly, by this stipulation, the United States not only recognized but guaranteed to their full extent the rights embraced in the broad term" the consent of the governed."

If in time to come a resident of said territory desires to withdraw his allegiance and bestow it elsewhere, the United States accords him the liberty, requiring only that if he remains within its jurisdiction he shall consent to the due observance and administration of the laws of the land.

This would be the rule in Arcadia and will probably not be superseded by the millennium.

CITIZENSHIP.

Citizenship is not a necessary resultant of an acknowledgment of allegiance. Citizenship is not a price paid by the United States for the allegiance of men. The correlative of allegiance is protection. (Carlisle v. United States, 16 Wall., 147, 154.) There are many persons within the jurisdiction of the United States from whom allegiance in some form is due who are not citizens of the United States. Many soldiers in our Army, sailors in our Navy, seamen in our merchant marine, travelers, temporary sojourners, Indians, Chinese, convicted criminals, and, in another and limited sense, minors and women belong to this class.

The celebrated case of Martin Koszta illustrates the obligations of the United States Government upon accepting a proffer of allegiance from an alien. Koszta came to the United States and took out his

"first papers" under the then existing naturalization laws. These papers contained a declaration of intention to become a citizen of the United States and constituted, in effect, a renouncement of his former allegiance and an acknowledgment of allegiance to the Government of the United States. While in Smyrna, Koszta was seized and placed in confinement by order of an Austrian official. The subsequent proceedings are described by Mr. Justice Miller as follows:

One of the most remarkable episodes in the history of our foreign relations, and which has become an attractive historical incident, is the case of Martin Koszta, a native of Hungary, who, though not fully a naturalized citizen of the United States, had in due form of law made his declaration of intention to become a citizen. While in Smyrna he was seized by command of the Austrian consul-general at that place and carried on board the Hussar, an Austrian vessel, where he was held in close confinement. Captain Ingraham, in command of the American sloop of war St. Louis, arriving in port at that critical period, and ascertaining that Koszta had with him his naturalization papers, demanded his surrender to him, and was compelled to train his guns upon the Austrian vessel before his demands were complied with. It was, however, to prevent bloodshed, agreed that Koszta should be placed in the hands of the French consul, subject to the result of diplomatic negotiations between Austria and the United States. The celebrated correspondence between Mr. Marcy, Secretary of State, and Chevalier Hülseman, the Austrian minister at Washington, which arose out of this affair and resulted in the release and restoration to liberty of Koszta, attracted a great deal of public attention, and the position assumed by Mr. Marcy met the approval of the country and of Congress, who voted a gold medal to Captain Ingraham for his conduct in the affair. (In re Neagle, 135 U. S., 64.)

Citizenship under our Government is not a right inherent to all men. If it is, then by what right is it denied to any person applying therefor? Why do we prescribe qualifications for naturalization and deny the privilege to Indians and Mongolians?

Citizenship is conferred by the Government. It carries with it great powers, rights, privileges, and immunities. Therefore the Government exercises its discretion in bestowing it. A man can not confer · it upon himself of his own volition or by his act of acknowledging allegiance to this Government. There are but two ways of acquiring citizenship in the United States:

1. Compliance with the naturalization laws.

2. Birth within the territory and allegiance of the United States. In Elk. Wilkins (112 U. S., 94, 101-102) the court, with reference to the fourteenth amendment, say:

This section contemplates two sources of citizenship, and two sources only: Birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States and subject to the jurisdiction thereof." The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth can not become so afterwards, 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.

The treaty with Spain (Paris, 1898) did not attempt to naturalize the inhabitants of the islands acquired by the United States. On the contrary, it provided that the civil rights and political status of the inhal itants shall be determined by the Congress (article 9).

It follows that they can become citizens only by a specific act of Congress.

Attention is directed to the fact that the pending bill for Hawaii contains provisions regulating the naturalization of the inhabitants of said islands.

THE RIGHT OF UNRESTRICTED ENTRY INTO THE UNITED STATES.

The inhabitants of the islands acquired by the United States during the late war with Spain, not being citizens of the United States, do not possess the right of free entry into the United States. That right is appurtenant to citizenship. The rights of immigration into the United States by the inhabitants of said islands are no more than those of aliens of the same race coming from foreign lands. The Chinese resident therein will be absolutely excluded under the provisions of the Chinese-exclusion acts. (The Chinese Exclusion case, 130 U. S., 581.) The Malays as well as the Chinese or Mongolians may be debarred. Certainly, so long as the political department of this Government elect to treat said islands as being outside the territorial boundaries of the United States, the question of excluding objectionable persons or races is of easy solution. The laws of the United States regulating commerce with that Territory have not been altered. Congress has not changed them, and certainly the Executive acting alone can not do so and has not made the attempt to perform such unauthorized function.

The doctrine discussed in the foregoing report-that Congress in legislating for territory outside of the boundaries of the several States of the Union is not bound by the limitations imposed by the Constitution was approved by the Secretary of War and adopted by the several branches of the executive department, and received the sanction of the legislative department by the enactment of the Foraker Act providing a civil government for Porto Rico (31 Stat. L., 77), which act was approved by the President and sustained by the Supreme Court of the United States in the insular cases (182 U. S. 1-498). The doctrine was elaborately discussed during the second session of the Fifty-sixth Congress (Cong. Record, 2d sess. 56th Cong.), and became a political issue in the Presidential campaign of 1900. The Republican party declared for the correctness of the doctrine; the Democratic, and People's Independent parties declared in opposition thereto. At the ensuing election the Republicans secured a majority of the popular vote and elected a majority in the Electoral College and in Congress.

INCIDENTS IN THE HISTORY OF THE UNITED STATES INVOLVING THE DOCTRINE THAT THE CONSTITUTION AND LAWS OF THE UNITED STATES EXTEND, EX PROPRIO VIGORE, OVER NEWLY ACQUIRED TERRITORY UPON THE ACQUISITION BEING COMPLETED.

[Submitted September 20, 1900.]

SIR: On February 12, 1900, I submitted for your consideration a report on the status of the insular possessions of the United States, containing a review of the treatment accorded by the judicial branch of this Government to the doctrine of extension of the Constitution and laws of the United States, ex proprio vigore, over newly acquired territory upon the acquisition being completed.

In further compliance with your request I have the honor to submit a supplemental report respecting the treatment heretofore accorded said doctrine by the legislative and administrative branches of the Government of the United States, as shown by certain important incidents of our national history.

While it must be admitted that legislative precedent, departmental practice, or Executive action are without the binding force of judicial determination, yet the United States Supreme Court admonishes us as follows:

The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention that framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive. (Burrow-Giles Lith. Co. . Saroney, 111 U. S., 53, 57.)

The practical construction of the Constitution, as given by so many acts of Congress and embracing almost the entire period of our national existence, should not be overruled unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land. (Field v. Clark, 143 U. S., 649, 691, and authorities there cited. )

The first incident to which attention is directed is that presented by the debates in Congress ensuing upon the Louisiana purchase treaty being communicated to that body, which incident may be termed very appropriately, "The charge of imperialism preferred against Thomas Jefferson."

This charge was preferred against Jefferson by the opponents of his course in acquiring Louisiana and was pressed with equal vehemence by members of his own party and his political opponents.

The antiexpansionists of those days were certain that the course pursued by Jefferson, Madison, and Monroe in securing Louisiana had violated the Constitution, perverted the principles on which this Government is founded, destroyed the rights of man, and imperiled the continued existence of the Republic. They exhibited quite as much alarm as do the antiexpansionists of to-day.

The cry of imperialism raised against Jefferson was based upon the charge that by the treaty of purchase he had attempted to incorporate Louisiana into the United States and to confer upon Louisiana and its inhabitants, without the aid and consent of Congress, the rights, privileges, and benefits created and guaranteed by the Constitution.

In those days everybody conceded that the President and Senate could not incorporate foreign territory into the United States by an exercise of the treaty-making power any more than he could transfer one of the States to a foreign power by agreeing to a treaty containing such stipulation.

Neither could the President and Senate confer upon individuals the right to participate in this Government and exercise the powers of citizenship.

It was universally held that if these things could be done at all they must be accomplished by legislation; that the legislative powers must be invoked, and the House of Representatives and the Senate must exercise their legislative functions in regard thereto. That the President, acting with the advice of the Senate, and exercising only the authority to make treaties, should be able to accomplish this result, was declared to be absurd and a usurpation of authority possessed by kings and kings' councils, but not vested in the President and Senate of the United States.

The treaty for the purchase of Louisiana was assailed as an act of imperialism because it did not contain the reservations found in the late treaty of peace with Spain, and the Jefferson Administration was assailed as imperialistic because it was alleged to have attempted to do what the McKinley Administration refused to do.

Jefferson repelled the charge by showing that he was pursuing the course which was subsequently followed by the McKinley Administration.

In Jefferson's day the charge of imperialism was one to conjure with. Jefferson had used it against his opponents and did not relish its application to himself.

That Jefferson was an expansionist admits of no denial. His greatest glory was derived from the acquisition of Louisiana and his greatest humiliation resulted from his failure to secure West Florida.

When Jefferson was the American minister at Paris in 1786, he gave expression to his views on the future policy of the United States as to expansion, as follows:

Our confederacy must be viewed as the nest from which all America, North and South, is to be peopled. We should take care, too, not to think it for the interest of that great continent to press too soon on the Spaniards. These countries canot be in better hands. My fear is that they are too feeble to hold them till our population can be sufficiently advanced to gain it from them piece by piece. The navigation of the Mississippi we must have. This is all we are, as yet, ready to receive. (Writings of Jefferson, edited by H. A. Washington, vol. 1, pp. 517-518.)