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ADDRESS

OF

K. R. BABBITT

OF

COLORADO SPRINGS, COLORADO.

LAW SIDE OF THE PUERTO RICAN QUESTION.

The hesitancy which one feels in contemplating an address before this Association is natural, and especially so if the time for its preparation be limited and must be sought from busy days.

The formidable subject which I have selected will doubtless induce the suggestion that I have poised for a rather ambitious flight. Lest some may fear that I have so far forgotten the proprieties of the occasion and become so unmindful of the presence in which I stand as to obtrude here an argument-political in the vulgar sense-I will say at the outset that such is not the

case.

The question as to the legal status of our newly-acquired possessions seems to me to be by far the most important now engaging the attention of our profession. True, it is engaging the attention of the whole people, but the ultimate solution of it will rest with the courts.

I shall endeavor to present, necessarily in a most cursory way, some of the contentions of the supporters of both sides regarding the limitations upon the right of the United States to acquire and govern new territory. It would perhaps be more agreeable to take either one side or the other and present its legal title to the respect of the profession, but for the reasons already stated it has been deemed advisable to pursue another course. Anything like a full consideration of the many questions

involved would far exceed the proper limits of this paper, and I have therefore endeavored to give a mere outline, perhaps at the expense of clearness in many instances.

The island of Puerto Rico was, until the ratification of the treaty of Paris on the 6th day of February, 1899, a dependency under the sovereignty of Spain. Sovereignty can never be in abeyance whenever a territory is ceded to a new sovereignty the sovereignty of the old jurisdiction departs-and consequently, forthwith upon the ratification of the treaty, the sovereignty over the island passed to the government of the United States. For a time it was held and governed by the executive department exclusively, under military rule, and until-theoret ically at least—the pacification of the island was complete. Up to this point no one questioned the propriety of the policy pursued from a legal point of view or that the executive department had in any way exceeded recognized constitutional powers.

The real questions that have divided the opinions of the profession arose when the time came for the congress to define the status of the island and determine the permanent form of its government.

There then arose a controversy popularly supposed to be new, but which in reality is nearly, if not quite, as old as the Constitution, though the principles, contended for by respective adherents, took on a new and increased importance in the attempt to apply them to Puerto Rico. A fair statement of the propositions out of which the present contentions grow is substantially as follows:

It is insisted on the one hand

First-That the power to acquire territory is limited to the acquisition of territory for the purpose of subsequently converting it into states.

Second-That immediately upon the acquisition of territory it becomes a part of the United States and the Constitution and laws of their own force extend over it.

Third-That, regardless of treaty stipulations or congres sional action, the inhabitants of ceded territory, immediately on its acquisition, become citizens of the United States and entitled to all the rights, privileges and immunities thereof.

Those opposed to the propositions above set forth assert: First-That the right of the federal government to acquire territory is an inherent sovereign right which exists independent

of a specific constitutional grant, but that such a grant may properly be inferred from certain clauses of the Constitution.

Second-That ceded territory may "belong to" and become "the property of" the United States without being a part of the United States.

Third-That the Constitution does not extend ex proprio vigore to acquired territory, but can only be so extended by treaty or act of congress.

Fourth-That prior to such treaty or congressional action, the inhabitants of such territory do not become citizens of the United States or entitled to the status of citizens.

The lawyer, and no doubt the layman, will find consolation in the fact that there is authority for each position, and no particular class or school or party can claim on these questions the merit of consistency when we view the political history of our country under the Constitution.

It is not in the province of this paper to question or discuss the possession by the United States as a sovereign state of every attribute of sovereignty possessed by any state in the sisterhood of nations.

No other could question our power to crown our chief magistrate, to create a peerage, to colonize, to have subjects, to hold slaves.

Somewhere in the sovereign state rests the power to do all these things, but is it in the executive, or in the congress, or in the states, or in the people, or only in all combined?

The question we have to discuss is one of internal polityof organic law. It is a searching from within, as a man searches his conscience to determine not what others will permit or forbid, but what he ought to do in obedience to the law of his being. We consider only the relations of the government to its own people.

Referring now to the first proposition stated, to wit, that there is no power in the nation to acquire territory by any method except for the purpose of ultimately erecting it into states, there is not at present any vigorous contest, but in support of it may be cited the Dred Scott decision.

This decision has been much discredited in the public estimation. The circumstances, unfortunate for the court under which it was delivered, are too well known for repetition here. It has

been said that the decision "was overruled by shot and shell and sabre stroke."

The court was divided and all of the justices filed separate opinions, but a careful reading of the voluminous case discloses that on two propositions there was no difference of opinion between the majority and the minority, to wit:

First "That the United States under the present Constitution cannot acquire territory to be held as a colony, to be gov erned at its will and pleasure. But it may acquire territory which at the time has not a population that fits it to become a state, and may govern it as a territory until it has a population which, in the judgment of congress, entitles it to be admitted as a state of the Union."

Second-"During the time it remains a territory congress may legislate over it within the scope of its constitutional powers in relation to citizens of the United States and may establish a territorial government, and the form of this local government must be regulated by the discretion of congress, but with powers not exceeding those which congress itself by the Constitution is authorized to exercise over citizens of the United States in respect to their rights of persons or rights of property."

It may be well to state at this point the radical difference which is to be found in the provisions of the French treaty whereby Louisiana was acquired, and in the Mexican treaty on the one hand and the treaty of Paris, whereby we acquired Puerto Rico, on the other, in respect to the status of the inhabitants of the respective ceded territories under the new sovereignty.

In the treaty with France it was stipulated that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States, and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess."

Practically the same provision appeared in the Mexican treaty and in every other treaty ceding territory until the treaty of Paris, which provides, article IX:

"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."

Whether the stipulations of the earlier treaties, though not directly before the court in the Dred Scott case, had any influ ence upon its action, it is impossible to determine, but there is support for the doctrine announced, in the debates of the constitutional convention, in the expressions of the profoundest constitutional lawyers of the generation before the civil war, as well as of those of the present, and in the underlying principles which must inhere in a government such as ours.

The treaty stipulations referred to doubtless had no binding force upon the United States in any legal sense, but were mere expressions of our intention, and as such should have been, and indeed they were, carefully fulfilled. They may be significant as an expression of both the executive and legislative branches of the government on the proposition above stated, as to the acquisition of territory.

This question is not in any event of great importance, since its determination, at least for all useful and practicable purposes, is involved in the proper determination of the truth or falsity of the terse and trite declaration that "The Constitution follows the flag."

This, like most popular catch phrases, will not bear careful analysis. The epigramatic declaration does not express what is intended. Our flag has been planted on the walls of the ancient Montezumas. The Constitution never went there. It floats now over Cuba, but the Constitution is not there. We rule over many islands of the sea where the Constitution as a living force is absent.

The real question, when applied to the matter in hand, is: Is Puerto Rico a part of the United States? This in turn involves other questions, as, Is Puerto Rico a territory of the United States in the same general sense that New Mexico is? If it be a territory, is it as such a part of the United States?

And in the determination of all these questions, which of course are in a certain sense academic, we must determine what is meant as a matter of constitutional law by the term "United States."

Much has been said and written on this point which in one phase or another has been the subject of numerous judicial decisions. The first time the term "United Colonies" was used in any official document was in 1775, as shown by the journal of the Continental congress. In the following year these colonies were first referred to as "States."

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