disincorporated, and, at the same time, that material
provisions are not to be enforced because the act
does incorporate. Two irreconcilable views of that
act cannot be taken at the same time, the
consequence being to cause it to be
unconstitutional.

 In what has preceded I have in effect
considered every substantial proposition, and have
either conceded or reviewed every authority
referred to as establishing that immediate
incorporation resulted from the treaty of cession
which is under consideration. Indeed, the whole
argument in favor of the view that immediate
incorporation followed upon the ratification of the
treaty in its last analysis necessarily comes to this:
Since it has been decided that incorporation flows
from a treaty which provides for that result, when its
provisions have been expressly or impliedly
approved by Congress, it must follow that the same
effect flows from a treaty which expressly stipulates
to the contrary, even although the condition to that
end has been approved by Congress. That is to
say, the argument is this: Because a provision for
incorporation when ratified incorporates, therefore
a provision against incorporation must also produce
the very consequence which it expressly provides
against.

 The result of what has been said is that while in
 an international sense Porto Rico was not a foreign
 country, since it was subject to the sovereignty of
 and was owned by the United States, it was foreign
 to the United States in a domestic sense, because
 the island had not been incorporated into the
 United States, but was merely appurtenant thereto
 as a possession. As a necessary consequence, the
 impost in question assessed on merchandise
 coming from Porto Rico into the United States after
 the cession was within the power of Congress, and
 that body was not, moreover, as to such impost,
 controlled by the clause requiring that imposts
 should be uniform throughout the United States; in
 other words, the provision of the Constitution just
 referred to was not applicable to Congress in
 legislating for Porto Rico.

 Incidentally I have heretofore pointed out that
 the arguments of expediency pressed with so
 much earnestness and ability concern the
 legislative, and not the judicial, department of the
 government. But it may be observed that, even if
 the disastrous consequences which are
 foreshadowed as arising from conceding that the


government of the United States may hold property
without incorporation were to tempt me to depart
from what seems to me to be the plain line of judicial
duty, reason admonishes me that so doing would
not serve to prevent the grave evils which it is
insisted must come, but, on the contrary, would
only render them more dangerous. This must be
the result, since, as already said, it seems to me it is
not open to serious dispute that the military arm of
the government of the United States may hold and
occupy conquered territory without incorporation
for such length of time as may seem appropriate to
Congress in the exercise of its discretion. The
denial of the right of the civil power to do so would
not, therefore, prevent the holding of territory by
the United States if it was deemed best by the
political department of the government, but would
simply necessitate that it should be exercised by
the military instead of by the civil power.

 And to me it further seems apparent that
 another and more disastrous result than that just
 stated would follow as a consequence of an
 attempt to cause judicial judgment to invade the
 domain of legislative discretion. Quite recently one
 of the stipulations contained in the treaty with Spain
 which is now under consideration came under
 review by this court. By the provision in question
 Spain relinquished "all claim of sovereignty over
 and title to Cuba." It was further provided in the
 treaty as follows:

 "And as the island is upon the evacuation by
 Spain to be occupied by the United States, the
 United States will, so long as such occupation shall
 last, assume and discharge the obligations that may
 under international law result from the fact of its
 occupation, and for the protection of life and
 property."

 It cannot, it is submitted, be questioned that,
 under this provision of the treaty, as long as the
 occupation of the United States lasts, the benign
 sovereignty of the United States extends over and
 dominates the island of Cuba. Likewise, it is not, it
 seems to me, questionable that the period when
 that sovereignty is to cease is to be determined by
 the legislative department of the government of the
 United States in the exercise of the great duties
 imposed upon it, and with the sense of the
 responsibility which it owes to the people of the
 United States, and the high respect which it of
 course feels for all the moral obligations by which
 the government of the United States may, either


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