1912.] OF THE UNITED STATES. 297 



must be recognized. We are not in a world where legal precedent, 

 formal logic, and academic considerations control. 



We recur to the bearings of these cases upon the subject of our 

 essay. One point is determined : that the treaty-making power can 

 be exercised to acquire territory.''- The decision goes no further 

 with respect to the interpretation of the treaty-making power. But 

 Mr. Justice White in his concurring opinion in Downes Z's. Bidwell 

 does express himself as follows: 



" It seems to me impossible to conceive that the treaty-making power by 

 a mere cession can incorporate an alien people into the United States without 

 the express or implied approval of Congress. ... 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 Con- 

 stitution ; that is, it may wreck our institutions.""" 



It should be observed of these remarks: first, that in the treaty 

 under discussion it was expressly provided that Congress should 

 determine the civil rights and political status of the inhabitants and 

 that consequently the situation discussed by Mr. Justice White was 

 not presented in the case before him; second, that four justices 

 disagreed positively with this view,'" one, Mr. Justice Brown, im- 

 pliedly,'^ and one, Mr. Justice Gray, did not express himself. It 

 should be further pointed out that in using the word " incorporate " 

 Mr. Justice White used it in a special sense: that is, as equivalent 



""In Wilson vs. Shaw, 204 U. S., 24 (1907), it is said: "It is too late in 

 the history of the United States to question the right of acquiring territory 

 by treaty," p. 32. 



""•' 182 U. S., pp. 312-3. 



'" It might perhaps be superfically thought that since in the case at bar 

 the ratification by Congress of the action of the treaty-making power was 

 complete, the four dissenting judges could not necessarily be said to have 

 differed with Mr. Justice White on the point in question. But since they 

 admitted that the treaty was valid, and held that on its ratification by the 

 Senate, the Constitution, and especially Art. i, Sec. 8, was ipso facto extended 

 to Porto Rico, it follows that this position was irreconcilably opposed to the 

 views of Mr. Justice White. 



" Such is the implication from the position of Mr. Justice Brown in 

 DeLima vs. Bidwell, where he held that Porto Rico became by the treaty 

 domestic territory. 



