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The Relations Between the United States and Porto Rico* Part II
Published online by Cambridge University Press: 04 May 2017
Extract
The question relative to the legality of the acquisition of Porto Rico by the United States involves the consideration of two different propositions: (1) the right of the United States, as a nation, to acquire territory generally; and (2) the power of the Federal Government to exercise that right according to the provisions of the Constitution. Looking at the question from this point of view, the legality of the acquisition may be considered under two different aspects: (a) the external or international, and (b) the internal or constitutional. Each of these two aspects of the question requires, of course, a separate study if not a complete and exhaustive discussion. We shall therefore examine them in their order, although to such extent only as the peculiar character and limitations of this article will permit.
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- Research Article
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- Copyright © American Society of International Law 1916
Footnotes
*
Continued from the October, 1915, number, page 883.
References
47 This Journal, Vol. 9, pages 887 et seq.
48 Ibid., page 890.
49 La occupation est simplement un état defait qui produit les consequences d’un cos de force majeure; l’occupant n’est pas substituS en droit au gouvernement légal. French Manuel de droit international pour les officiers de l’armée de terre, page 93, quoted by Westlake, Internationa] Law, II, page 95, note 3. Prior to the middle of the eighteenth century there was no distinction, either in theory or in practice, between a mere occupation and a complete conquest. It was first made by Vattel (liv. Ill, § 197), but the full consequences of this distinction were not drawn before the appearance of Heffter’s (§ 131) remarkable work in 1844. Hershey, Essentials of International Public Law, page 408, note. The Santa Anna, Edewads, 180. See Oppenheim, Vol. I, Sec. 236 and Vol. II, Sec. 264.
50 Sec. 171.
51 This Journal, Vol. 9, pp. 906–907.
52 Ibid., page 897.
53 Hershey, op. tit., Sec. 174.
54 This Journal, Vol. 9, pp. 896–897.
55 The cession of populated territory would seem to demand as an act of fairness and justice, that the sentiments of the inhabitants thereof towards the new sovereign should be consulted by means of what has been called a plebiscite. This practice, however, has not been adopted as a principle of international law and probably will never be, at least in respect to those cessions which are founded merely upon force. Hall, International Law, page 47; See Rivier, supra, Tome II, page 439.
56 In America the Monroe Doctrine stands as a formidable protest against this well settled principle of international law.
57 Principes du Droit des Gens, Tome I, page 197.
58 A treaty of cession is a deed of the ceded territory by the sovereign grantor. J. C. Bancroft Davis’ Rules for the Construction of Treaties, quoted by Butler in his admirable work entitled Treaty Making Power of the United States, Vol. II, pp. 145–148, rule X.
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.”
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 Senor Sagasta, see Olivart, , Colección de los Iratados, convenios y documentos nacionales, etc., Vol. XII, pages 455–456 Google Scholar.
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.
65 Tucker on the Constitution, Vol. I, Sec. 106, page 178.
66 In re Neagle, 135 U. S. 84; dissenting opinion of Justice Lamar.
67 Story on the Constitution, Vol. II, Sec. 1287, page 175.
68 Mormon Church case, 136 U. S. 42.
69 American Insurance Company, etc., v. Canter, 26 U. S. 511. See upon this general subject the remarks of Mr. Justice Brown in delivering the opinion of the court in the case of De Lima v. Bidwell, 182 U. S. 1, at pp. 194-196; see also the concurring opinion of Justices White, Shiras and McKenna in Downes v. Bidwell, 182 U. S. 244, at pp. 302–305.