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missions had not come to a decision, since such material in the Philippines, he understood, belonged to Spain." The question was not then discussed, but, when it was raised again, on the 5th of December, the American Commissioners "declared that they were not authorized to treat" concerning the return of the war material in Cuba and Porto Rico not disposed of by the evacuation commissions; and they added, with respect to the war material in the Philippines, "that it should be governed by the same conditicus as were agreed to by the evacuation commissions in the West Indies." But, says the protocol, "the president of the Spanish Commission and his colleagues maintained that the cession of the archipelago did not carry and could not carry with it anything except what was of a fixed nature; they explained the character of the siege artillery and heavy ordnance which the Americans claimed for themselves, and after some discussion to the end of determining precisely what each commission understood as portable and fixed material, it was agreed that stands of colors, uncaptured war vessels, small arms, guns of all calibers, with their carriages and accessories, powder, ammunition, live stock and materials and supplies of all kinds belonging to the land and naval forces shall remain the property of Spain; that pieces of heavy ordnance, exclusive of field artillery, in the fortifications, shall remain in their emplacements for the term of six months, to be reckoned from the ratification of the treaty; and that the United States might in the meantime purchase such material from Spain if a satisfactory agreement between the two governments on the subject should be reached." This agreement was embodied, in almost identical terms, in Art. V. of the treaty of peace. And it was held by the United States that, under this article, the Spanish guns and other war material captured by the Navy at Cavite during active war must be deemed to be the property of Spain.

a S. Doc. 62, 55 Cong. 3 sess., part 2, p. 226.

S. Doc. 62, 55 Cong. 3 sess., part 2, pp. 228–229. See, also, Magoon's Reports, 566. "While it might be admitted that there would be some question of the ownership of this material in the absence of any provision with reference thereto in the treaty, there would not appear to be any doubt as to the right or power of the Commission to treat of the subject in the negotiations. . . . The Peace Commissioners did treat of the matter, reached an express agreement in regard to it, and embodied it in the treaty, without limitation or definition as to whether the property in question might have passed under the control of the United States forces either prior to or subsequent to the suspension of hostilities which followed the signing of the Peace Protocol in Washington on the 12th of August, 1898. This being so, it is not perceived how it could be claimed that the property in question was not affected by the treaty because of its having been captured during active war, unless upon the extreme contention that such material having been captured by the United States naval forces before the date of the treaty is to be considered as not coming under the description of property 'belonging to the land and naval forces of Spain.' As to this I may observe that had

H. Doc. 551-19

"A distinction is sought to be made between those waters of rivers which belong, by the law of Spain, to the State or Crown and those which belong to the public of Porto Rico. For practical purposes, in the disposition of this case, I can see no difference. Whatever property or property rights belonged to the Crown of Spain or to the indefi nite body known as 'the public of Porto Rico' were, by the treaty of Paris, transferred to and became the property of the United States of America."

Griggs, At.-Gen., July 27, 1899, 22 Op. 546, 547. Under the Spanish law, lands under tide water to high-water mark in the ports and harbors in the Spanish West Indies belonged to the Crown, and, as the property of the Crown, they became, by the treaty of cession, a part of the public domain of the United States. (Griggs, At.-Gen., July 26, 1899, 22 Op. 544.)

4. CONQUEST.
$ 87.

The holding of a conquered territory is regarded as a mere military occupation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such a transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the Government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state.

American Insurance Co. v. Canter, 1 Peters, 511.

any such important qualification or limitation been intended by the framers of the Peace Treaty it is hardly conceivable that it should not have found expression in the language of that compact. My view finds confirmation in the use in the treaty provision in question of the words 'uncaptured war vessels,' the object of which was to except from the property to be turned over to Spain the vessels which had been capturned by Admiral Dewey. No such distinction is made as to any of the other property or materials named." (Mr. Hill, Acting Sec. of State, to the Sec. of War, Sept. 23, 1899, 240 MS. Dom. Let. 253. See also, Mr. Hay, Sec. of State, to the Sec. of the Navy, Apr. 21, 1900, 244 MS. Dom. Let. 434, saying: "In Cuba and Porto Rico the Spaniards had the right (and used it) to carry away any of the described property they could find," which it was agreed they might take away, "whether it had been captured by the United States or not. The only test was that the property should be found in existence at the time of the evacuation and that the fact that it had belonged to the Spanish Government should be shown. The evacuators simply took it in the condition in which they found it.")

By the conquest and military occupation of Castine by the British on September 1, 1814, that territory passed under the temporary allegiance and sovereignty of the enemy. The sovereignty of the United States over the territory was suspended during such occupation, so that the laws of the United States could not be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. But, on the other hand, a territory conquered by an enemy is not to be considered as incorporated into the dominions of that enemy, without a renunciation in a treaty of peace, or a long and permanent possession. Until such incorporation, it is still entitled to the full benefit of the law of postliminy.

U. S. . Hayward, 2 Gall. 485. See U. S. v. Rice, 4 Wheat. 246.

The capture and occupation of Tampico, by the arms of the United States, during the war with Mexico, though sufficient to cause it to be regarded by other nations as part of our territory, did not make it a part of the United States under our constitution and laws; it remained a foreign country within the meaning of the revenue laws of the United States.

Fleming . Page, 9 Howard, 603.

"The authority and jurisdiction of Mexican officials [in California] terminated on the 7th of July, 1846. On that day the forces of the United States took possession of Monterey, the capital of California, and soon afterwards occupied the principal portions of the country, and the military occupation continued until after the treaty of peace. The political department of the government designated that day as the period when the conquest of California was complete and the authority of the officials of Mexico ceased.”

More . Steinbach (1888), 127 U. S. 70, 80, citing Fremont v. United States, 17 How. 542, 563.

Down to the middle of the eighteenth century the practice of belligerent nations

accorded with the theory that all kinds of property, coming into the hands
of one of the parties to the war, vested in him as conqueror and were sub-
ject to his absolute disposal, so that he might even alienate or cede the
occupied territory while the issue of hostilities remained undecided. But
since that period this rule has been either abandoned or subjected to very
material limitations both in theory and in practice. With reference to
what is said in the foregoing case, it is to be remembered that permanent
title to California passed to the United States under the treaty of Guada-
lupe Hidalgo.

See the cases of the "Georgiana" and "Lizzie Thompson," Moore, Int.
Arbitrations, II. 1606–1608.

See, as to the validity of the payment to the temporary occupant of debts
due to the titular sovereign, the case of the occupation of Naples by
Charles VIII. in 1495, Phillimore, Int. Law, III. 838; and, as to the valid-
ity of the payment of such debts to the conqueror who gains and main-
tains a firm possession, the case of Hesse Cassel, id. 841.

At the International American Conference, in Washington, the delegates of the Argentine Republic and Brazil offered, January 15, 1890, a series of resolutions, the eighth article of which read as follows: "Acts of conquest, whether the object or the consequence of the war, shall be considered to be in violation of the public law of America." (Minutes of the International American Conference, 107, 108.)

The resolutions were referred to the committee on general welfare, which, April 18, 1890, recommended the adoption of the following declarations: "1. That the principle of conquest shall never hereafter be recognized as admissible under American public law.

"2. That all cessions of territory made subsequent to the present declarations shall be absolutely void if made under threats of war or the presence of an armed force.

"3. Any nation from which such cessions shall have been exacted may always demand that the question of the validity of the cessions so made shall be submitted to arbitration.

"4. Any renunciation of the right to have recourse to arbitration shall be null and void whatever the time, circumstances, and conditions under which such renunciation shall have been made."

These declarations were subscribed by three members of the committee respectively representing the Argentine Republic, Bolivia, and Venezuela. Three other members representing Colombia, Brazil, and Guatemala stated that they adopted only the first of the declarations.

Mr. Varas, a delegate from Chile, stated that the delegation from that country would abstain from voting or taking part in the debate on the resolutions. Mr. Henderson, a delegate from the United States, offered, as expressing the views of the United States delegation, the following resolution: "Whereas, in the opinion of this conference, wars waged in the spirit of aggression or for the purpose of conquest should receive the condemnation of the civilized world: Therefore

“Resolved, That if any one of the nations signing the treaty of arbitration proposed by the conference, shall wrongfully and in disregard of the provisions of said treaty, prosecute war against another party thereto, such nations shall have no right to seize or hold property by way of conquest from its adversary."

After a long discussion, in which the delegate from Peru supported the recommendation of the committee as a whole, the report was adopted by a majority of 15 to 1. The delegations voting affirmatively were Hayti, Nicaragua, Peru, Guatemala, Colombia, Argentine Republic, Costa Rica, Paraguay, Brazil, Honduras, Mexico, Bolivia, Venezuela, Salvador, and Ecuador. The United States voted in the negative, while Chile abstained from voting.

Further discussion then took place, after which a recess was taken in order that an agreement might be arrived at which would secure the vote of the United States delegation. On the session being resumed, Mr. Blaine presented the following plan:

"1. That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as admissible under American public law.

"2. That all cessions of territory made during the continuance of the treaty of arbitration shall be void if made under threats of war or the presence of an armed force.

"3. Any nation from which such cessions shall be exacted may demand that the validity of the cessions so made shall be submitted to arbitration. "4. Any renunciation of the right to arbitration made under the conditions named in the second section shall be null and void."

The conference unanimously agreed to accept this as a substitute for the former report, Chile abstaining from voting. (Minutes of the International American Conference (1889-90), 798-806. The plan of a treaty of arbitration

adopted by the conference never became operative.)

Opinions of publicists.

5. PRESCRIPTION.

§ 88.

Grotius, referring to the theory of Vasquius, that the doctrine of prescription was inapplicable as between nations, says: "Yet, if we admit this, there seems to follow this most unfortunate conclusion, that controversies concerning kingdoms and the boundaries of kingdoms, are never extinguished by any lapse of time; which not only tends to disturb the minds of many and perpetuate wars, but is also repugnant to the common sense of mankind.”

Grotius, De Jure Belli ac Pacis, Lib. II. Cap. IV. § 1.

The original text reads: "Atque id si admittimus, sequi videtur maximum incommodum, ut controversiæ de regnis regnorumque finibus nullo unquam tempore extinguantur: quod non tantum ad perturbandos multorum animos et bella serenda pertinet, sed et communi gentium sensui repugnat.'

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Prescription was a title known to the Roman Law. (Institutes of Justinian,
Lib. II. Tit. VI.)

"And perhaps we may say that this is not merely a matter of presumption, but that this law is established by the voluntary law of nations, that a possession beyond memory, not interrupted, nor disturbed by appealing to an arbitrator, absolutely transfers dominion. It is credible that nations have agreed on this, since such a rule is most conducive to the public peace."

Grotius, De Jure Belli ac Pacis, Lib. II. Cap. IV. § 9.

The original text reads: "Ac forte non improbabiliter dici potest non esse hane rem in sola præsumptione positam, sed jure gentium voluntario inductam hanc legem, ut possessio memoriam excedens, non interrupta, nec provocatione et arbitrum interpellata, omnino dominium transferret. Credibile est enim in id consensisse gentes, cum ad pacem communem id vel maxime interesset."

That the doctrine of international prescription is sometimes discussed by analogy to the rule of the common law in matters of private litigation, as if it depended upon presumption as to a prior grant, may be seen in the following passage: "Now, mere lapse of time, independent of legislation or positive agreement, cannot of itself either give or destroy title. It gives title only so far as it creates a presumption, equivalent to proof, that a title exists, derived from higher sources: it destroys title only because it creates a like presumption that, whatever the title may have been, it has been transferred or abandoned. Thus it is merely evidence and nothing more. It creates a presumption equivalent to full proof. But it differs from proof in this, that proof is conclusive and final, whereas presumption is conclusive only until it is met by counter-proof, or a stronger counter-presumption." (Mr. Upshur, Sec. of State, to Mr. Everett, min. to England, Oct. 9, 1843, MS. Inst. Great Britain, XV. 148.)

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