THE RELATIONS BETWEEN THE UNITED STATES AND

PORTO RICO *

(PAST, PRESENT AND FUTURE)

PART II

1. THE LEGALITY OF THE ACQUISITION

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.

(a) The International Aspect

Juridically speaking, the discussion of the external or international aspect of the acquisition of Porto Rico must be based upon the principles of public international law as accepted and acted upon by the so-called civilized nations of the world in their mutual relations for their reciprocal benefit and the preservation of peace, as far as possible, among themselves.

In this connection it is important to notice, in the first place, the nature of the title upon which the United States bases its claim to Porto Rico. This point becomes of special importance when it is considered that the beautiful island of the Caribbean has often been spoken of, either

* Continued from the October, 1915, number, page 883.

expressly or by implication, even by high authority, as conquered territory, just as if the acquisition of it by the United States was legally founded upon a complete conquest. But this is not so. As already shown in the first part of this article, the United States came into military possession of Porto Rico by a combination of actual military operations and by consent of Spain as the result of a truce of war looking to the conclusion of a treaty of peace.47 The consent of the native population of Porto Rico was of course given or necessarily implied in the reception accorded to the American forces by the people.48 All this in law did not amount to a complete conquest; it was merely military occupation. Military occupation is only a belligerent act which does not involve the substitution of the legitimate sovereign.49 A conquest, on the other hand, is the acquisition of complete sovereignty over a country by mere force of arms. Professor Hershey, in his very valuable work on the Essentials of International Public Law,50 defines a complete conquest as "the incorporation of foreign territory, i. e., its complete and permanent subjection to the territorial jurisdiction of the conquering or occupying state, after its subjugation by armed forces. This incorporation must be shown by some act showing intention (such as a decree of annexation) and ability to maintain permanent possession." Disregarding entirely as irrelevant all problematical considerations as to the relative possibilities or probabilities of the Spanish-American War in respect to the Porto Rican campaign, and adhering strictly to the facts and law of the case, it would seem, therefore, improper to refer to the acquisition of the island as a mere conquest.

47 This JOURNAL, Vol. 9, pages 887 et seq.

48 Ibid., page 890.

49 La occupation est simplement un état de fait qui produit les consequences d'un cas de force majeure; l'occupant n'est pas substitué en droit au gouvernement légal. French Manuel de droit international pour les officiers de l'armée de terre, page 93, quoted by Westlake, International 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. III, § 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.

As a matter of law, the title of the United States to Porto Rico is founded exclusively upon the cession stipulated in Article II of the Treaty of Paris, heretofore mentioned: "Spain cedes to the United States the Island of Porto Rico and other islands now under Spanish sovereignty in the West Indies.

* * 51

As a matter of history, perhaps, the cession may have been forced from Spain by the "inflexibility of the demand" of the United States, as the Spanish Minister for Foreign Affairs was pleased to characterize it.52 This, however, seems to be of no consequence under international law, according to which Spain, under the circumstance, was at liberty to accept or reject the demand of the United States. In point of fact it probably would have been of no avail to her to reject it owing to her inability to oppose the military forces of the United States. But this does not affect the question of the legality of the acquisition, inasmuch as there is a legal fiction that all cessions of territory from one nation to another are voluntary, whether brought about by armed coercion at the close of a war or by more ethical means during normal times of peace. 53 Moreover, as to the ethical aspect of it, we are inclined to believe that the purpose of that "inflexibility" was not exactly to obtain by force a rich gift from Spain simply for the aggrandizement of the United States. This would have characterized the acquisition as a mere spoil of war. As we have already suggested,54 we are inclined to believe that the cession of Porto Rico was demanded mainly in response to the clamor of the American people for the total expulsion of Spain from the Western Hemisphere and for the liberation of the Porto Rican people from Spanish domination.

Beyond that, the whole subject of the acquisition of Porto Rico finds its logical explanation in the peculiar psychology of war and its derivative phenomena. In this connection it may be noted that after a successful war, where the victor is in a position to impose conditions upon the vanquished for the restoration of peace, those at the head of the government are altogether too often carried away by the unfortunate inter

national practice of asking territorial compensations for the losses and expenses incident to the war, under such delusions as "assuming our real position in the world," "our plain duty," "fate," "manifest destiny, and other high sounding expressions of patriotic enthusiasm, which in the last analysis are not always inspired in the most perfect wisdom, deliberation and prudence. It is thus that in the Spanish-American War there is no solution of continuity between the purpose of the war and the cession of Porto Rico by Spain to the United States. And yet, if Spain had emphatically refused to cede Porto Rico and insisted that its fate. should follow that of Cuba, the attitude of President McKinley might have been entirely different. Then he would have been confronted with the peculiar alternative of abandoning the "inflexibility" of his demand for an absolute cession of Porto Rico as inconsistent with the purpose of the war, or asking the people to abandon the great principle involved in the joint resolution of Congress of April 19, 1898, and continue the war for the mere acquisition of a few square miles of noncontiguous and entirely alien territory, and in that case the people would have been called upon to decide whether the purpose of the Spanish-American War was a purpose of liberation of oppressed peoples or the aggrandizement of the United States.

If the former had been the decision, it would have been enough that the fate of Porto Rico should follow that of Cuba. It would have been sufficient to stipulate in the treaty of peace that Spain should relinquish all claim of sovereignty over and title to Porto Rico, and that as the island was to be occupied by the United States, the United States should, so long as such occupation should last, assume and discharge the obligations that might under international law result from the fact of its occupation, for the protection of life and property. This stipulation would have eliminated Spain from the Western Hemisphere and at the same time would have given freedom of action to the United States in Porto Rico, as in the case of Cuba, for the purpose of administering it according to the peculiar necessities of the situation, clear from all constitutional entanglements, until the United States should judge it advisable and proper to turn over the government of Porto Rico to the Porto Ricans, as an independent government; or, if it were thought feasible and prudent from the American point of view, to formally annex

the island, with the full consent of the Porto Rican people, as an inseparable part of the United States, either as an organized territory, to be later admitted to complete statehood, or as a state of the Union. As to the other alternative, it is sufficient to say that American conceptions of international ethics and right would never have sanctioned it.

Of course, there was present the possibility of a prolongation of the war, and Spain perhaps did not care to risk the consequences of it; perhaps she thought it was useless to try, perhaps she did not care, or perhaps it may have appeared all the same to her. But none of these things affect the legality of the acquisition under international law; they are merely questions of historical conjecture and nothing more.

As to the cession itself, it may be said that, whatever ethical or political reasons may exist to the contrary, it is a principle of the law of nations that territory of any description, whether populated 55 or not, or wherever situated,56 may be made the subject of a transfer from one state to another, whether as the result of a public war, by treaty of peace, or by sale, exchange, gift, etc. In this respect it may be said also that the ordinary rules governing the transfer of private rights and property, with some very important exceptions, are quite applicable here. Of course, as observed by Rivier,57 the sovereignty over a territory and its inhabitants gives to the act of cession a peculiar character and greater importance than that which is attributed to a mere transfer of a piece of land. As an act of cession, the Treaty of Paris was equivalent to a deed of conveyance, 58 by which the grantor, Spain, ceded to the grantee, the

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.

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.

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.