United States, the Island of Porto Rico and other islands then under Spanish sovereignty in the West Indies, etc.

Just as in public law it is one of the principal rules affecting the transfer of property that the parties shall be legally competent to effect it, so it is also a rule of international law that the parties that intervene in a cession of territory shall be legally competent, that is to say, sovereign and independent states, which alone gives them the required authority to cede or acquire territory in an international sense.59

As an independent and sovereign nation, the United States has, as any other, the right to acquire territory by any and all the methods known to and recognized by the law of nations, such as by discovery, conquest or treaty. This right, which must be distinguished from the constitutional power of the Federal Government to exercise it, is possessed and can be exercised by the United States, as a nation, in the same manner and to the same extent as it is possessed and can be exercised by every other independent and sovereign Power, as a general attribute of sovereignty belonging to all sovereign and independent states.60 As above suggested, the Constitution might or might not restrict or altogether deny to the Federal Government the power to exercise this right of sovereignty; but that would not affect the right itself to acquire territory, which appertains to the United States in its capacity of a sovereign and independent state.61 Spain, on the other hand, as a sovereign and independent nation

59 "The right of sovereign Powers to cede territory to, and to acquire territory from, other sovereign Powers, with the accompanying transfer of sovereignty thereover, is one of the elementary principles of international law. It is essential, however, that the contracting Powers should be fully sovereign in order to act either as transferer or transferee." Butler's Treaty Making Power of the United States, Vol. I, Sec. 43.

60 Jones v. United States, 137 U. S. 202, by Gray, J. See Butler's Treaty Making Power of the United States, Sec. 32, at page 59.

61 "It may be laid down," says Pomeroy (International Law, Sec. 115, Woolsey's ed.), "as an universal doctrine of the international law, that every sovereign independent state may transfer or acquire territorial possessions. I say this is a doctrine of the international law, which does not concern itself with the internal organization of countries, and the powers committed to governments, or to any other department thereof. Whether, therefore, any particular nation may transfer its territory or acquire territory from another is a question to be answered by examining the constitution of the country, the functions and capacities conferred upon its rulers. This belongs entirely to public and not to international law."

also, had the right to cede any part of her territory, and so could, under the law of nations, cede Porto Rico to the United States, provided she had a good title to convey, whether as legitimate compensation for the losses and expenses of the United States incident to the Spanish-American War, or merely as a forced gift to prevent the prolongation of that war.62

Considering the treaty itself, it may be said that it was properly drawn and executed according to the customary practice of nations, and as the United States was already in actual and complete possession of the island since the retirement of the Spanish troops, there was nothing that either country could do in order to make the transfer more effective. The legality of the acquisition, however, also depends upon whether Spain had any title to convey to the United States and whether the United States had not estopped itself by the declarations contained in the joint resolution of Congress of April 19, 1898, to assert any right of sovereignty over or title to Porto Rico derived from Spain.

As to the first part of this proposition, it may be laid down as a universal principle of law, whether public or international law, that in every cession or grant, whether of a compact territory of about 3,500 square miles or a small tract of land of merely a few acres in extent, the grantee or cessionary takes exactly the same title which the cedent or grantor had at the time of making such a cession or grant. The grantee, to repeat a homely expression commonly used by the courts, stands in the shoes of the grantor; he succeeds him in his rights. This principle is so well settled and recognized, that it is hardly necessary to cite any authority in its support.

In regard to it, however, it is enough to say, at least, as a legal proposition, that Spain became entitled to Porto Rico in exactly the same manner that she had become entitled to all her possessions in America, namely, through discovery and conquest. In point of discovery Porto

62 In order to satisfy constitutional requirements, the Spanish Cortes passed a law authorizing the government to relinquish all rights of sovereignty over and to cede territories in the provinces and possessions beyond the seas, in conformity with the preliminaries of peace. This law was sanctioned by the Queen Regent of Spain on Sept. 16, 1898. For the Spanish text of this law and the melancholy preamble of it submitted by the entire Cabinet of Señor Sagasta, see Olivart, Colección de los tratados, convenios y documentos nacionales, etc., Vol. XII, pages 455–456.

Rico is older than the United States, since it was discovered by Columbus in 1493. Its conquest, however, was not begun by the Spaniards until early in the sixteenth century under the leadership of Don Juan Ponce de León, the persistent and undaunted searcher for the chimerical fountain of perpetual youth, and of whom it has been written as an epitaph upon his tomb:

Nole sub hac fortis requiescunt ossa Leonis

Qui vicit factis nomina magna suis.6

63

The Spanish title was of course founded upon the public international law of the period respecting the discovery and occupation of land. The application of this law in America has been explained by the great Chief Justice Marshall, as follows:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.64

As to the second part of the above proposition, namely, whether the United States had not estopped itself by the declarations contained in the

63 "This narrow grave contains the remains of a man who was a Lion by name, and much more so by his deeds."

64 Johnson v. McIntosh, 8 Wheaton, 543-572.

joint resolution of Congress of April 19, 1898, from asserting any right of sovereignty over or title to Porto Rico derived from Spain, it is sufficient to say that the legal doctrine of estoppel has no clear application here. While there may be something pathetic, disappointing and paradoxical in the acquisition of Porto Rico as a direct cession from Spain, especially if it is to be held indefinitely as a mere colony or possession of the United States, it might yet be argued that the solemn declarations made by Congress in the joint resolution had no direct reference to Porto Rico, that they were made in response to special conditions obtaining in the Island of Cuba, and that in consequence of this circumstance they must be taken as referring to the Island of Cuba only. In denying, by implication, the sovereignty of Spain in Cuba, the United States might, perhaps, in point of law, have precluded itself from asserting any right of sovereignty over or title to the Island of Cuba, for the simple reason that to do so would have operated as a fraud upon the Cubans, whose position was undoubtedly affected by the declarations of the said joint resolution of Congress. To apply this doctrine to the case of Porto Rico would necessitate the extension of a further doctrine, namely, that since Spain held Porto Rico by the same title as it did Cuba, the denial of her sovereignty, jurisdiction and control over Cuba was equivalent to a denial of her sovereignty, jurisdiction and control over Porto Rico.

It is a question, however, whether these technicalities could be carried successfully to such an extent. The Porto Ricans may, perhaps, have materially altered their position on account of the famous declarations of the said joint resolution of Congress, with the possible expectation of obtaining that freedom and independence to which all peoples are justly and legitimately entitled and for the attainment of which they had, as we have already seen, struggled for over half a century; but, from the point of view of international law and practice, it would be hardly available to contend that the sovereignty of the United States over and title to Porto Rico are legally impaired to any extent by any such considerations adverse to the same. In the present state of the world, the usages and laws of nations do not admit of any such refinements of right, equity and justice. Whether these things will ever have any bearing upon the future relations between the United States and Porto Rico, depends not so much upon the question of law, but rather upon the high

sense of honor of the American people and the future development of circumstances which will call forth a practical application of the American theory of a square deal to the solution of this national problem. We have said "national" problem advisedly, because the Porto Rican problem is a purely national problem, even though, eventually, it may require the establishment of another little republic in the Caribbean under the benevolent protection of the United States.

(b) The Constitutional Aspect

So far we have considered the question of the legality of the acquisition of Porto Rico by the United States as an international proposition, regarding the United States as a member of the family of nations. Considering it now as a constitutional proposition, the question, of course, involves the consideration of the power of the Federal Government, under the Constitution, to exercise the right of the United States, as a nation, to acquire territory generally or more specifically by treaty. The question of the right itself, we have seen, is not constitutional but international.

Whether the Federal Government has any power to exercise that right is not by any means a new question in constitutional law. It has been made, at different times in the history of this country, the subject of, and occasion for, many elaborate discussions and very earnest and spirited controversies by and among the most prominent and distinguished men of past and present generations in the United States.

As it is well known, there are, and always have been, in the United States two different schools of constitutional construction: the narrow one, which would exclude from the powers of the Federal Government all such as are not expressly given to it by the Constitution, except those which are necessarily implied for their exercise; and the broad one, which concedes to the Federal Government not only all such powers as are expressly given or which are necessarily implied for their exercise, but all those which are implied in the nature of the Union and in the character of the government created by the Constitution. The one tends to preserve the so-called States' rights by holding "that the unit of sovereignty is the State, which is a body politic; that the Constitution of the United States is a compact between these sovereign units and bodies