their allegiance to Spain by making, before a court of record, within a year from the date of the exchange of ratifications of the said treaty, a declaration of their decision to preserve such allegiance. The treaty declared that in default of such declaration they should be held to have renounced such allegiance and to have adopted the nationality of the territory in which they resided. either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves; and in no case shall they be subject to taxes on transfer, inheritance, or any others different from those paid by the latter."

It was also contended that any change in the nationality of the country of their nativity could not affect the rights acquired by the heirs of Jacob Levy while the country was an integral part of France and they were citizens thereof; that the repeal of a law, or change of a treaty, or a cession of territorial domain subsequent to the date when the right of inheritance attached could not affect any right acquired under the treaty or such law or cession of territory. Several authorities were cited in the brief in support of these positions, and especially the decis ion of the Supreme Court of the United States in the case of Dawson v. Godfrey, 4 Cranch, 321, 2 L. ed. 634. It was also claimed by counsel for the memorialist that the nationality of the father was transmitted to his minor children; that neither the mother nor guardian could change it during their minority; that when the minors attained their majority they had the right to elect whether they would adhere to the country to which their father owed allegiance at the date of his death, and that until that period arrived they continued citizens of France. The cession of Alsace, it was alleged, did not affect in any particular the private rights of the citizens to property or claims for injuries committed prior to the cession.

Counsel for the United States, in reply to the contention of private counsel that there was no analogy between the case of Perché and the case at bar, maintained that the question for the commission to consider was one solely of the fact of citizenship; that the motive or reason or the attending circumstances in the case of a change of nationality ought not to be considered, and could properly have no weight; that, assuming the position of counsel for the claimant to be a tenable one, it was true that she had the option tendered to her by the treaty of 1871; but that she was then called upon to make her choice, either to remain in Germany and become a subject of the German Empire or to accept the privileges of the treaty and retain her citizenship in France. She chose to remain in the German Empire, and thus voluntarily fixed her character as a German subject.

The Commission sustained the demurrer in these words: "The commission, in this case, judges well-founded, and admits the demurrer

The treaty (art. 9) further provided that "the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress."

It will be observed that this treaty, unlike previous treaties of cession to which the United States has been a party, makes no provision for the incorporation of the interposed by the agent of the United States to the claim or memorial. In its opinion, it is beyond doubt that the claimant and her children, being natives of Alsace and having always resided there, and not having made choice of the French nationality during the interim granted by the treaty of May 10th, 1871 (which applied to persons of full age as well as to minors), are included in the collective naturalization, real as well as personal, which resulted to that country in consequence of its annexation to the German Empire, sanctioned by that treaty. And as German subjects, which they have become, they can not in any manner have recourse to a commission created solely for the settlement of certain claims of French or American citizens. The French nationality of Jacob Levy, whose rights the claimant and her children have inherited, can not be included in this inheritance. Possessed by him alone, it does not satisfy the requirements of the convention, which demands French nationality in those who actually present themselves before the commission. Benjamin Weil and Marx Levy never having been French, the rights which they transferred to Jacob Levy can not, a fortiori, be taken into consideration, nor can they render any better the legal condition of the claimant and her children. For these reasons the commission sustains the demurrer of the United States counsel, and declares the claim outside of its jurisdiction."

The judgment of the commission sustaining the demurrer was dated the 25th of June, 1881. The 20th of September, 1881, the claimant, by her attorney, filed an amendment to the memorial, in which she declared that she and her minor children were then residents and citizens of France, and that her post-office address at that time was in Paris, France. Documentary evidence was also produced, showing that Henriette Levy, the claimant, was, upon a proper application to the authorities of France, reinstated as a French subject on the 3d of June, 1882.

Counsel for the United States maintained that the amendment was, in effect, an admission that Henriette Levy and her minor children were subjects of Germany at the time the treaty was ratified, and that citizenship in France, acquired after the date of the treaty, could not give jurisdiction to the commission over parties so acquiring citizenship. The case was dismissed finally for want of jurisdiction.

Boutwell's Report, 65, French and American Claims Commission, Convention of January 15, 1880, 21 Stat. at L. 673; 3 Moore's Int. Arbitrations, 2514 et seq.

inhabitants of the ceded territory as citizens of the United States. It expressly declares that the civil rights and political status of the native inhabitants shall be determined by the Congress.

The contention was advanced by those who were opposed to the acquisition of Porto Rico and the Philippine Islands that the United States has no power, in acquiring and governing territory, to provide against the incorporation of the inhabitants of the acquired territory as citizens of the United States. They contended that the inhabitants of the territory ceded to the United States by Spain became, immediately upon annexation, citizens of the United States.

1. Insular Cases: Decisions of Supreme Court.

The Supreme Court of the United States, in the Insular Cases, 182 U. S. 1-391, 45 L. ed. 1041-1146, 21 Sup. Ct. Rep. 742-827, declared, however, that this government, in acquiring territory, has power to prescribe the terms upon which it will receive the inhabitants; and, in the concurring opinion of Justices White, Shiras, and McKenna, it was held that where a treaty of cession contains provisions against the incorporation of the inhabitants as citizens, incorporation does not take place until, in the wisdom of Congress, it is deemed that the acquired territory has reached a condition where it is proper that it should enter into and form a part of the American family.

In their concurring opinion (182 U. S. 300), Justices White, Shiras, and McKenna said:

"

. . .

Let me eliminate the case of war, and consider the treaty-making power as subserving the purposes of the peaceful evolution of national life. Suppose the necessity of acquiring a naval station or a coaling station on an island inhabited with people utterly unfit

for American citizenship and totally incapable of bearing their proportionate burden of the national expense. Could such island, under the rule which is now insisted upon, be taken? Suppose, again, the acquisition of territory for an interoceanic canal, where an inhabited strip of land on either side is essential to the United States for the preservation of the work. Can it be denied that, if the requirements of the Constitution as to taxation are to immediately control, it might be impossible by treaty to accomplish the desired result?

"Whilst no particular provision of the Constitution is referred to, to sustain the argument that it is impossible to acquire territory by treaty without immediate and absolute incorporation, it is said that the spirit of the Constitution excludes the conception of property or dependencies possessed by the United States and which are not so completely incorporated as to be in all respects a part of the United States; that the theory upon which the Constitution proceeds is that of confederated and independent states, and that no territory, therefore, can be acquired which does not contemplate statehood, and excludes the acquisition of any territory which is not in a position to be treated as an integral part of the United States. But this reasoning is based on political, and not judicial, considerations. Conceding that the conception upon which the Constitution proceeds is that no territory, as a general rule, should be acquired unless the territory may reasonably be expected to be worthy of statehood, the determination of when such blessing is to be bestowed is wholly a political question, and the aid of the judiciary can not be invoked to usurp political discretion in order to save the Constitution from imaginary, or even real, dangers. The Constitution may not be saved by destroying its fundamental limitations.

"Let me come, however, to a consideration of the

express powers which are conferred by the Constitution, to show how unwarranted is the principle of immediate incorporation, which is here so strenuously insisted on. In doing so it is conceded at once that the true rule of construction is not to consider one provision of the Constitution alone, but to contemplate all, and therefore to limit one conceded attribute by those qualifications which naturally result from the other powers granted by that instrument, so that the whole may be interpreted by the spirit which vivifies, and not by the letter which killeth. Undoubtedly, the power to carry on war and to make treaties implies also the exercise of those incidents which ordinarily inhere in them. Indeed, in view of the rule of construction which I have just conceded-that all powers conferred by the Constitution must be interpreted with reference to the nature of the government, and be construed in harmony with related provisions of the Constitution-it seems to me impossible to conceive that the treaty-making power by a mere cession can incorporate an alien people into the United Saates without the express or implied approval of Congress. And from this it must follow that there can be no foundation for the assertion that, where the treaty-making power has inserted conditions which preclude incorporation until Congress has acted in respect thereto, such conditions are void and incorporation results in spite thereof. If the treaty-making power can absolutely, without the consent of Congress, incorporate territory, and if that power may not insert conditions against incorporation, it must follow that the treaty-making power is endowed by the Constitution with the most unlimited right, susceptible of destroying every other provision of the Constitution; that is, it may wreck our institutions. If the proposition be true, then millions of inhabitants of alien territory, if acquired by treaty, can, without the desire