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 affirming, in effect, that the cession of the islands was not to operate as a naturalization of their native inhabitants, but that the determination of their civil rights and political status was to be left to the subsequent judgment of Congress. Spanish subjects, natives of the Iberian Peninsula, but resident in the islands, were, however, given the right to elect whether or not they would retain their old citizenship or become American subjects. The provisions of the treaty upon these points were 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 the exchange of ratifications of this treaty, a declaration of their de

cision 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 this last treaty provision, 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 treatymaking 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 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 into 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 employed in this amendment, will be construed to exclude or in-` clude "unincorporated" territories.

In the case of Gonzales v. Williams (24 Sup. Ct. Reporter, 177), decided January 4, 1904, the Supreme Court held that inasmuch as, since the treaty of cession with Spain, the island of Porto Rico had ceased to be foreign territory, natives living there in 1899 are not "aliens" within the meaning of that term as employed in the act of Congress providing for the detention and deportation of alien immigrants likely to become public charges. Whether or not such persons, though subject to the sovereignty of the United States, are its citizens within the narrower constitutional sense, so long as the island remains unincorporated into the United States, was not passed upon.

As regards those of the natives of the Philippine Islands, who are still uncivilized and maintain tribal relations, it may be that the courts will construe their status to be similar to that of the Indian tribes in the United States.

CHAPTER XVIII

ADMISSION OF NEW STATES

THE process of admitting new States to the American Union is a comparatively simple process and but few constitutional questions have arisen in connection with it. The constitutional clause governing the subject reads as follows: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the legislatures of the States concerned as well as of Congress" (Art. IV, Sec. 3). It will thus be seen that nothing is said as to the conditions that must be met by a given territory before it may claim, or Congress be obligated to grant, admission to the Union as a State. The whole matter is left absolutely to the discretion of Congress. There can be no question but that at the time of the adoption of the Constitution the idea was generally held that all non-state territory held or to be held by the United States was to be regarded as material from which new States were to be created as soon as population and material development should warrant. But no attempt was made to force the hand of Congress under circumstances

that could not be foreseen by defining in the Constitution itself the conditions under which statehood should be accorded. But one limitation is laid down, and that impliedly, and one that relates rather to the status of new States after admission, than to the process of admission itself. This is that the new Commonwealths, when received into constitutional fellowship with the older members of the Union, shall stand upon an exactly equal footing with them. The Constitution does not expressly declare this, but, without distinguishing between the original and the new States, defines the political privileges which the States are to enjoy, and declares that all powers not granted to the United States shall be considered as reserved "to the States. From this it almost irresistibly follows that Congress has not the right to provide that certain members of the Union, possessing full statehood, shall have their constitutional competences in any manner less than that of their sister States. According to this, then, though Congress may exact of territories whatever conditions it sees fit as requirements precedent to their admission as States, when admitted as such, it cannot deny to them any of the privileges and immunities which the other Commonwealths enjoy.1

This principle of the equality of States had its origin before the adoption of the Constitution itself. In the acts of cession by the several States by which the old Confederacy obtained the control of the Northwest Territory, it was provided that from this vast area new States should, from time to time, be organized, which

1 See Pollard's Lessee v. Hagan, 3 How., 212; Strader v. Graham, 10 How., 82; Weber v. Harbor Commissioners, 18 Wall., 57.