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The purpose of the treaty between the l'nited States and Spain (18IS), ils stated therein, was "to en the state of war now existing between the two countries." Being the victor, the United States dictated the terms and conditions upon which the war would end. The situation was in many respects the same it's in the instance of the war with Mexico. The United States had captured and occupied the provincial capitals of Porto Rico, the Philippines, and the island of Guam, and the Spanish forces therein had suurendered to the force of American arms, and these provinces were subject to military ocenpation by the American forces. This was a sufficient basis of good title for the l'nited States. So long as the United States continued to hold and occupy said islands neutral nations must recognize the United States as possessed of sovereignty therein. As was said by the l'nited States Supreme Court with regard to territory subjected to military occupation during the war with Mexico:

It is true that when Tampico had been captureel anıl the State of Tamaulipas subjugater other nations were bound to regard the country, while our prossession (ontinuell, as the territory of the United States, and to respect it as such; for, by the laws and usages of nations, conquest is a valiul title while the vietor maintains the exclusive possession of the conquereil country.

As regarded by all other nations, it was a part of the United States, and belonged to them as exclusively as the territory incluided in our established boundaries; but yet it is not a part of the Union, for every nation which acquires territory by treaty or conquest holiis it according to its own institutions and laws; and the relation in which the port of Tampico stood to the l'nited States while it was occupied by our arms did not depend upon the law of nations, but upon our own ('onstitution and arts of Congress. (Fleming 1. Page, 9 Ilow., 603, 615.)

Such was the situation as to Porto Rico, the Philippines, and Guam when the Peace Commission assembled in 1898. One requirement made by the American commission was that Spain should assume toward the islands mentioned the same position as was occupied by the other nations of the earth, which is that the territory belongs to the United States, “but yet it was not part of this l'nion," or " included in our established boundaries,” since these were matters which depend upon “our Constitution and the acts of (ougx."

At the time of the peace conference at Paris in 1898 all the rights of Spain in the islands mentioned had not been obliterated. The sovereignty of Spain therein had been displaced and suspended, but not destroyed. Theoretically Spain retained the right of sovereignty, but the United States was in possession and exercising actual sovereignty. The rights of the United States were those of a belligerent and arose from possession and were dependent upon the ability to maintain that possession. Under the doctrine of postliminy the sovereignty and rights of Spain would become superior to those of the United States, if by any means Spain again came into possession of one or all of said islands. The American commission therefore required, as a condition precedent to a peace, that Spain surrender this right of repossession. As regarded Cuba the situation was and remains different. The military forces of the United States had not captured Havana, the capital of the Spanish colony of Cuba, and only a relatively small portion of that island was subject to military occupation by our forces. In addition, the United States before invading Cuba had disclaimed any intention of acquiring sovereign rights in said island. Therefore the occupation of Cuba in whole or in part by the military forces of the United States, while it imposed duties, did not confer rights upon our Government. It follows that, at the time of the peace conference in 1898, the title of Spain to Cuba had not been divested by our military occupation. It was therefore necessary to require Spain to relinquish title in Cuba. This was done by the following provision in the treaty: ART. 1. Spain relinquishes all claim of sovereignty over and title to Cuba.

But in the provisions of the treaty regarding the islands in which the United States had secured and was asserting rights of its own the language is different and the reference to title is omitted. To quote the exact words of the treaty:

Art. 2. Spain cedes to the United States the island of Puerto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam, in the Marianas or Lailrones.

ART. 3. Spain cedes to the United States the archipelago known as the Philippine Islands and comprehen«ling the islands lying within the following line:

The cession provided for by these articles is referred to five times in subsequent articles of the treaty, as follows: ART. 9.

the territory over which Spain by the presert treaty relinquishes or cedes her sovereignty. *

ART. 10. The inhabitants over which Spain relinquishes or cedles her sovereignty shall be, etc.

Art. 11. The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignty shall be, etc. Art. 12. Judicial proceedlings pending *

in the territories over which Spain relinquishes or cedes her sovereignty shall be, etc.

Art. 14. Spain will have the power to establish consular officers in the ports and places of the territories the sovereignty over which has been either relinquished or ceded by the present treaty.

It therefore seems that the word " cede," as used in this treaty, is to be given the meaning ascribed to it by ordinary usage, to wit, “To yield or surrender; to give up; to resign." (Webster's Dictionary:)

Consideration must also be given to the fact that nowhere in this treaty is mention or reference made of the territorial boundaries of the United States, either present or prospective; and to make "assurance doubly sure," the treaty provides:

The civil rights and political status of the native inhabitants of the territories hereby ceded to the l'nited States shall be determined by the Congress.

It results from the foregoing that when this treaty was ratified by the Senate and approved by the Executive, these two agencies of our



ART. 9.


Government ilssented to the war ceasing and peace being established upon the condition (among others) that Spain assents to the rights secured by the United States by virtue of military occupation and abandons its right to regain the territory so occupied. In so doing, neither the Senate nor the Executive attempted to extend the territorial boundaries of the United States, nor to assent to such extension, for the proposition was in no wise involved. So that if the Senate or the Executive, acting alone or in conjunction, and without the concurrence of the House of Representatives, could extend or contract the territorial boundaries of the United States, it is sufficient to say that in this instance they have not attempted to exercise such power. The Senate placed itself on record by passing the following resolution:

Resolural by the Senate and House of Representatires of the United States of Imerien in ('ongress assembleil, That by the ratification of the treaty of peace with Spain it i.: not intendeil to incorporate the inhabitants of the Philippine Islands into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but it is the intention of the l'uiter States to establish on said islands a government suitable to the wants and conditions of the inhabitants of said islands to prepare them for local self-government, anıl in (lue time to make such disposition of said islands as will best promote the interests of the citizens of the l'nited States and the inhabitants of said islands.

As to the effect of action by the political branch of our Government regarding territory, the Supreme Court of the Cnited States sar (Marshall, Chief Justice):

If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession and which it claims under a treaty; if the legisluture has acted on the construction thus cesserteil, it is not in its own courts that this construction is to be denied. A question like this respecting the boundaries of a nation is, as has been truly said, more a political than a legal question, and in its discussion the courts of every country must respect the pronounced will of the legislature. (Foster et al. 1. Veilson, 2 Peters, 253, 309.)

In a later case the court again assert this doctrine, and with reference to the announcement thereof in Foster ». Neilson say:

This court did not deem the settlement of boundaries a judicial but a political question--that it was not its duty to lead, but to follow the other departments of the Government; that when individual rights depended on national boundaries its duty commonly is to decide upon individual rights according to those principles which the political departments of the nation hare established.

We think, then, however individual judges might construe the treaty of San. Ildefonso, it is the prorince of the court to conform its decisions to the will of the legislature, if that will has been clearly expressed. (United States ?. Arredondo et al., 6 Peters, 691, 711; Garcia 1. Lee, 12 Pet., 511, 520.)

The effect of the treaty and the action thereon by the Senate and the Executive was to end the war. But the condition of the territory subject to military occupation as a result of that war was not changed by said treaty, except that it ceased to be a theater of actual war and the title of the United States was made incontestable.

* *


l'p to the present time the only powers of the l'nited States which have been exercised in relation to these islands are the war powers. The confirmation of the treaty of peace was but the consummation of a

But the military arm of our Government is without authority to extend the boundaries of the United States. In regard thereto the Supreme Court of the United States say:

A war, therefore, «leclareil by (ongress can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law leclaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered or to reimburse the Government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war.

His duty and his power are purely military. As commander in chief he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country and subject it to the sovereignty and authority of the Uniteul States. But his conquests (lo not only the bounduries of this Union, nor extend the operation of our institutions and lars beyond the limits before assigned to then by the legislative power. (Fleming et al. 2. Page, 9 How., 614, 615.)

The military arm of our Government deals with our enemies' territory as "property." Such territory is lawful prize of war and is seized and held, as the Supreme Court say, “in order to indemnify its citizens for the injuries they have suffered or to reimburse the Government for the expenses of the war."

This is what has been done in the territory acquired by the United States in the late war with Spain. The President, having waged a war declared to exist by the Congress and having conquered a peace, presents to Congress the territory of said islands as so much property, seized as a spoil of war and to be dealt with by the sovereign people of the United States as shall be determined by that sovereign's will.

In United States 7. Reynes the court say (9 How., 153, 154):

The logistatire and crocutire departments of the Government have determined that the entire territory was so (edel. This court have solemnly and repeatedly declared that this was a matter peculiarly belonging to the cognizance of those departments. (United States 1. Reynes, 9 How., 127, 153-154.)

In Fleming et al. 7. Page the court further say (9) How., 616): But the boundaries of the United States as they existeil when war was declared against Mexico were not extended by the conquest; nor could they be regulated by the varying incidents of war and be enlarged or diminished as the armies on either side advanced or retreated. They remaineil unchanged. And every place which was out of the limits of the United States, as preriously established by the political (14thorities of the Government, was still foreign.

Attention is directed to the fact that the legislative department of the United States Government has not taken action of any kind whatever in regard to the territory of the islands ceded by Spain. The Senate has advised the President to ratify the treaty of peace and terminate the war upon the terms set forth in the treaty. Being so advised, the President ratitied the treaty. (30 V. S. Stats., 1754.)

Since the ratification the President and all the subordinate departments of the executive branch of our Government have treated said territory as being outside of the territorial boundaries of the l'nited States.

Although these islands were outside the boundaries of the United States, they were territory appertaining to the United States, to which the sovereign people of the l'nited States had acquired sovereign title, and in which said sovereign håd secured many proprietary rights to property. It was therefore the duty of the President to use the means at his disposal to maintain the one and preserve the other. This duty is equally imperative should the emergency arise upon the high seas, or in territory recognized to be within the jurisdiction of another sovereignty. Therefore the discharge of such duty can not be interpreted as an assent to the extension of the territorial boundaries.

Apparently the position of the President is that the initial step in making known the will of the sovereign in regard to the extension of our boundaries to include this territory is to be taken by the legislatire department, and the assent of the executive department to be evidenced by the approval of the acts of the legislative department by the President. This course is in harmony with the theory and est:ublished practices of our Government.

In the special message to Congress transmitting the Louisiana purchutne treaty President Jefferson said:

With the wisdom of Congress it will rest to take those ulterior measures which may be necessary for the immeiliate occupation and temporary government of the (ountry; for its incorporation into our Union; for renlering the change of government a blessing to our newly arlopter brethren; for securing to them the rights of conscience and property,

and establishing friendly relations with them. ( Messages of the Presidents, Richardson's (omp., Vol. I, p. 358.) In that message Jefferson also said: The property and sovereignty of all Louisiana

have on (ertain conditions been transferred to the United States bv instruments bearing date th: 30th of April last. When these shall have received the constitutional sanction of the Senate they will without delay be communicaterl to the Representatires also for the exercise of their functions as to those conditions which are within the powers l'esterilor the Constitution in Congress. (Ibid. )

After the Louisiana purchase treaty had been ratified by the Senate and ratifications exchanged, Jefferson again sent the treaty to Congress, accompanied by a message wherein he said:

are communicated to you for consideration in your legislatire capacity You will observe that some important conditions can not be carried into execution but with the aid of the Legislature. (Richardson's Comp., Vol. I, p. 362.)






These conventions

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