CHAPTER IX

INTERPRETATION AND FULFILMENT OF TREATY OF

PEACE

There is no better place to test the spirit of a government than in its conduct as a conqueror after the formal conclusion of a war. Its animus will appear again and again in the execution of the treaty of peace, and the perfection of its governmental institutions be the most severely tried. Law is provided with some of its richest precedents at such times. The SpanishAmerican war was virtually closed with the treaty of Paris, signed December 10, 1898, but from the standpoint of general international law and from that of American administrative law there remained many difficult problems. At the close of the war there were obligations toward neutral powers to be observed; obligations toward the vanquished to be carefully regarded; obligations toward those whom fate had thrown under the jurisdiction of the United States to be sacredly administered.

The first three articles of the treaty of peace have to do with the territorial changes which Spain was called upon to recognize.1 By the first article Spain

1Treaty of Peace, Senate Document 62, 55 Cong., 3 Sess.

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'Art. 1.—Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island 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

relinquished all claim to sovereignty in Cuba. The United States at the same time assumed and agreed to discharge such obligations as might arise under international law in respect to that island, but the question of its ultimate disposal remained unsettled in the result from the fact of its occupation, for the protection of life and property.

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

"Art. 3.-Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following line: A line running from west to east along or near the twentieth parallel of north latitude and through the middle of the navigable channel of Bachi, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich, thence along the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich to the parallel of four degrees and forty-five minutes (4° 45′) north latitude, thence along the parallel of four degrees and forty-five minutes (4° 45′) north latitude to its intersection with the meridian of longitude one hundred and nineteen degrees and thirty-five minutes (119° 35′) east of Greenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty-five minutes (119° 35') east of Greenwich to the parallel of latitude seven degrees and forty minutes (7° 40′) north, thence along the parallel of latitude seven degrees and forty minutes (7° 40′) north to its intersection with the one hundred and sixteenth (116th) degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the tenth (10th) degree parallel of north latitude with the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich to the point of beginning.

"The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three months after the exchange of the ratifications of the present treaty."

treaty. The second article ceded to the United States Porto Rico and the other islands in the West Indies belonging to Spain, of which the Isle of Pines is the most important, and the island of Guam in the Ladrones group as well. The third article ceded the Philippine Islands to the United States, which power agreed in turn to pay twenty million dollars to Spain. This money payment was a reimbursement to Spain for the surrender of what was assumed to be an equivalent value in public property owned by that power in the Philippines, together with improvements of a pacific character, and was in no sense a purchase price allowed for the group.2

But upon what ground within international usage could the United States demand the cession of these territories? The act of Spain in yielding sovereignty over Cuba accomplished the end for which the war was begun. The inquiry becomes directly, What was the rule of international law under which the annexation was made?

Five modes of acquiring territory have been recognized: occupation, prescription, accretion, conquest and cession. As the Spanish colonies were already the possession of a civilized power none of the first three modes would apply. Transfer of title by conquest indicates that the basis is not a treaty, as it must be in cession. No serious writer holds any longer to the theory that conquest alone is sufficient justification for territorial annexation. In the last century there have been some notable examples of resort to the right of conquest as a sufficient title, but these

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2 The Treaty of Peace and Accompanying Papers, p. 109.

The case of Hesse-Cassel, annexed to the Westphalian territories by Napoleon.

have been relics of the old system when states and their inhabitants were held to be the patrimony of their sovereigns. No nation now holds to the bald doctrine of an adequate title by the fact of conquest alone, and recent practice indicates that it must give way entirely to a dependence upon some form of cession by treaty. Besides, the United States had not conquered the Philippines, and possessed no rights whatever of that kind. All the territorial changes effected by the treaty of 1898 were the application of the latter mode of acquiring territory, and they took on the special form of forced gifts of territory in lieu of other indemnity, sanctioned by a special deed of cession.

So much was the forfeit demanded from Spain for resorting to the arbitrament of war. The territories ceded were accepted by the United States as compensation in full for the losses and expenses occasioned by the war and for the claims of its citizens by reason of the injuries and damages they might have suffered in their persons and property during the Cuban insurrection. Spain made no denial of the right of the United States to demand a territorial indemnity, but confined its efforts to an attempt to retain sovereignty over the Philippine archipelago, and failing that the Sulu Islands, and to an attempt to secure more liberal privileges and concessions in those yielded.*

The United States might have chosen to set an example of unprecedented magnanimity in accepting no indemnity for its work of philanthropy in Cuba's behalf. Many of its people thought this course the only consistent and honorable one. In choosing to exact

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The Treaty of Peace and Accompanying Papers, Washington, 1899, pp. 58, 92, 95, 209, 219.

the customary penalty in such cases the United States was acting strictly within its legal rights as understood by the current principles of international law." It is quite another question whether the United States was justified in exacting so high a price. International law prescribes no definite limits to the amount of the indemnity, but it must be reasonable in amount. To go beyond that would be to array neutral powers against the offender, and to defeat the aim of the demand for indemnity, namely, permanence of the peace. It has been maintained that a power like the United States, so thoroughly committed to the right of the individual to decide by what government he would be ruled, should have submitted the question of change of sovereignty in the islands annexed to a popular ratification by their inhabitants. The United States acted on the presumption that an application of the popular plebiscite even to Porto Rico was not feasible. The time, however, has certainly come when popular sanction must be secured in all changes of territory affecting civilized peoples. The treatment of civilized inhabitants and their territories as so much property to be given as an indemnity is a political absurdity.

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There were numerous precedents for a plebiscite. In 1860 Sicily, the Marches and Umbria were annexed to the Kingdom of Italy by direct and universal suf

For general subject see the monograph of Cassan, Les cessions de territoire, Paris, 1900; Westlake, Law Quarterly Review, Vol. XVII, p. 392, an article on "The Nature and Extent of the Title by Conquest." The latter is in the main a criticism of the conclusions of Rivier, Principes du droit des gens, on the effect of conquest and the rights of the conquered, illustrated by the South African war.

"For this view see Le Fur, La guerre hispano-américaine, p. 278.