In conclusion, we should observe that the period of the Thirty Years' War served as a laboratory for the jurists of the latter half of the seventeenth century, who began to develop the science of international law along empirical lines. Particularly, the period of eight or nine years of negotiations for peace which preceded the Congress of Westphalia afforded a large number of precedents and cases in diplomacy and law similar to those which Zouche, Textor and Wicquefort employed to illustrate their texts, and which in time crowded out the classical and biblical allusions of Victoria, Suarez, Gentili and Hugo Grotius. In the matter of diplomatic procedure, the various problems connected with mediation occupied a large part of the attention of the diplomats. Numerous offers of good offices and mediation were made by the neutral Powers,-Denmark, Venice, England, the Papacy, and many lesser states. The ensuing struggle on the part of Richelieu to prevent these offers of good offices and mediation from wrecking the Franco-Swedish alliance, the difficulties arising out of the Papal refusal to mediate between the Catholic and Protestant Powers, the delicate task of ousting the King of Denmark as a mediator at Osnabrück after he had become a belligerent, and the quarrel over the personnel of the mediators and the peace delegations, gave rise to a considerable number of diplomatic precedents. Throughout these negotiations the policy of Richelieu moved steadily toward the goal of a universal peace congress, and in the end his great purpose was achieved. The Congress of Westphalia was thus the first of the general conferences in which the majority of European Powers were represented. The practice of negotiating in diplomatic assemblies was not, however, a new procedure, as witness, for instance, the Congress of Cateau-Cambrésis in 1559. Even the term congress was already found in the diplomatic vocabulary; and the custom' of neutralizing the seat of a congress had previously been established. The holding of the Congress of Westphalia simultaneously in two towns thirty miles apart was the result of the Papal policy of intolerance toward the Protestant Powers and of the well-founded fear of the Swedes regarding the overbearance of France in the peace negotia tions. No general truce preceded the congress. The proposal of the Pope for a truce and the contention of the French that a suspension of arms must necessarily precede a peace congress, did not carry the day. Throughout the sitting of the Congress of Westphalia, the armies of the belligerent states actively continued their hostile operations. Numerous other details of diplomatic procedure, such as the form of the safe-conducts, and the question of the equality of states in the assembly, hindered the making of peace. The eight or nine years of negotiations preliminary to the Congress of Westphalia cannot properly be separated from the four years of negotiations at the congress itself, although it is convenient to consider them apart in a study of diplomatic procedure, for the purpose of inquiring into the problems involved in the calling together of the first great congress of the European Powers. Of course, throughout this period, the chief obstacles to peace were the eagerness of the belligerents to support their claims by force of arms and the demand of Richelieu for a universal congress. For nearly a decade the Imperialists desperately fought this demand. If they could have broken the Franco-Swedish alliance, or if they could have driven the French and Swedish armies out of Germany, the Thirty Years' War would have had a different ending. The final adoption of the French program for a general peace congress was a brilliant triumph of French diplomacy over the Hapsburg policy of Divide et impera. Although the various belligerents took advantage of every question of procedure with the intention of retarding such peace negotiations as did not appear to be for their own interest, yet, on the other hand, these problems constituted in themselves a very real hindrance in the way of the pacification of Europe. KENNETH COLEGROVE. THE RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO.* PAST, PRESENT AND FUTURE. PART II (CONTINUED). 3. THE INSULAR CASES AND THE STATUS OF PORTO RICO. Downes v. Bidwell.80 This is really the most important judgment in all the Insular Cases so far as a determination of the present status of Porto Rico is concerned. It is interesting because in it the now famous doctrine of non-incorporation is developed. It will be well, however, to state at the outset that in this case there was no majority opinion of the court and that the decision was reached merely by the concurrence of a majority of the judges in what is styled in the syllabus of the case as the conclusion and judgment of the court. In view of the great diversity of opinion evinced by the judges in this case, as will later appear, it was regarded at the time by very able lawyers and commentators of note as a very doubtful precedent which the court might not feel in the future bound to accept as the settled law of the land. So far, however, it has stood the test of time, and although the recent passage of the so-called Jones-Shafroth Act, extending to Porto Ricans a large measure of self-government and the privilege of American citizenship,81 seemed to reopen the question of the juridical status of Porto Rico and require the rejection or modification of the doctrines laid down or relied upon in this important decision, its conclusions have been affirmed and ratified and are largely * Continued from previous numbers of this JOURNAL, Vol. IX; pp. 883 et seq.; Vol. X, pp. 65, 312. 80 182 U. S. 244. 81 Public No. 368, 64th Cong. The text of this law will also be found in the Supplement to this JOURNAL, Vol. XI, pp. 66-93; see "Some Historical and Political Aspects of the Government of Porto Rico," in The Hispanic-American Historical Review, Vol. II, No. 4. accepted at the present time as a correct expression of the national sense. It is at any rate the only authoritative declaration of the present status of Porto Rico so far made by any competent branch of the government.82 It is therefore important to examine this decision. somewhat at length in order to ascertain and determine the present status of the Island and the particular doctrines upon which that status is supposed to be founded. The ostensible purpose of the case under consideration was to test the constitutionality of the Foraker Act,83 and to recover back certain duties exacted and paid under protest upon merchandise brought into the port of New York from Porto Rico after the passage of that Act. The duties in question were exacted under Section 3 of the Act, which provided, "that on and after the passage of this Act all merchandise coming into the United States from Porto Rico and coming into Porto Rico from the United States shall be entered at the several ports of entry upon payment of fifteen per centum of the duties which are required to be levied, collected and paid upon like articles of merchandise imported from foreign countries," 84 and the question briefly stated, was whether Article I, Section 8, of the Constitution of the United States, providing that "all duties, imposts and excises shall be uniform throughout the United States" was applicable to this case; that is to say, whether this particular provision of the Constitution must be considered as controlling the action of Congress when legislating on the subject for a territory situated as Porto Rico was. This case differs from the other two already considered in that here the test is not, as there, whether Porto Rico was or was not a foreign country, either in the international or in the constitutional sense, but rather whether the Island had become an integral part of the United States, so as to be included within the purview of the con 82 The latest confirmation of this status is to be found in the People of Porto Rico et al. v. José Muratti, and the People of Porto Rico v. Tapia, recently decided per curiam by the Supreme Court on the authority of the case under consideration and other cases mentioned in the docket. (245 U. S. 639.) 83 U. S. Stat. at Large, Vol. 31, p. 77. 84 See "Some Historical and Political Aspects of the Government of Porto Rico," supra, note 81. 85 This JOURNAL, Vol. X, p. 317 et seq. stitutional provision aforementioned, and the question therefore involved, in substance, a determination of the juridical status of the Island from the point of view of constitutional law. Internationally, there could hardly be any question that Porto Rico was, and is, by virtue of the treaty of cession, an integral part of the United States. Upon the formal exchange of the ratifications of that treaty Porto Rico ceased to be a Spanish province; it ceased to be Spanish territory subject to the Crown of Spain. In contemplation of law, the treaty of cession operated to sever all political connections between Porto Rico and the mother country; so that, in respect to Spain, Porto Rico became a foreign country, its Spanish nationality being entirely destroyed by the transfer. It is clear that the same act which divested the Island of its Spanish nationality gave to it, as a sort of international compensation, the nationality of the United States. That such result was equally contemplated by the high contracting parties is apparent in the treaty itself, where they repeatedly speak of the future "nationality of the territory" over which Spain relinquished or ceded her sovereignty.86 If this was not the result contemplated by them, what then was the nationality referred to in this expression? In the case of Cuba it might be assumed that the contracting parties contemplated Cuban nationality, because as to that island Spain was only relinquishing her claim of sovereignty over and title to the island.87 But as to Porto Rico, could it be said that the contracting parties had in mind a Porto Rican nationality? Evidently not, because the words of the treaty in respect to this Island leave no room for doubt as to the fact that an absolute transfer of sovereignty was intended. The words of the treaty are: "Spain cedes to the United States the Island of Porto Rico.''88 This provision, accord 86 See specially Article IX. 87 Article I of the Treaty of Paris contains the following provisions: "Spain relinquishes all claim of sovereignty over and title to Cuba. And as the Isiand is, upon its 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, for the protection of life and property." 88 Article II of the Treaty of Paris is in full as follows: "Spain cedes to the United States the Island of Porto Rico and other Islands now under Spanish |