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conclusive where the territory has been deliberately acquired, or long occupied, or, above all, where it is identified with the rest of the country through national unity and community of interest. These considerations are not pertinent in the case of the Philippines. At the outbreak of the war with Spain the American people neither wished nor expected to annex the islands, and, whatever personal expectations of aggrandizement may have lurked behind the plan of campaign in the East, the Administration, though it will not plead ignorance of a probable opportunity, maintains that aggrandizement was not intended. Indeed, the most common argument for annexation is really an apology: The law of war forced us to the islands; the law of necessity chained us there. Never in our history was so important an acquisition undertaken so lightly, and accomplished with so little pride of achievement. Our occupation of the Philippines is not only of recent date, but for an indefinite period is likely to be merely an armed occupation. Race hatred confronts us. National unity is beyond prophecy. Far from even desiring community of interests, we actually tax the trade between the islands and the mainland, and would view an immigration of Filipinos as an Asiatic plague. Add that the Philippines are not even an outer line of defense, but rather a vulnerable outpost, and are neither the home of American colonists nor the location of American investments, and it is perceived that we are not embarrassed by considerations that usually place alienation of territory beyond the pale of discussion, but may consider freely the questions of right, terms, and expediency.


The constitutions of some countries forbid any alienation of territory. This prohibition will not stand in the way of a conqueror; and, indeed, throughout this discussion I assume that a ceding state is acting free from the foreign duress that practically effaces domestic law. Nor does it cover a surrender of claims to disputed territory, as appears by the settlement of the boundary controversy between Great Britain and Venezuela, where the latter, though forbidden to alienate territory, accepted an award dismissing certain claims. The purpose of the prohibition seems to be to assure an ill regulated state against loss of territory by the act of improvident or

corrupt rulers.

Generally, and invariably among the stronger nations, with the right to acquire land there is, logically, a right to cede it. And voluntary cession is not unexampled: Witness the cession of Louisiana by France to the United States, of Alaska by Russia to the United States, of Java and Heligoland by Great Britain to Holland and Germany respectively, of St. Bartholomew by Sweden to France.

The law makes the Philippines a part of the United States, but it does not compel us to hold them forever. The right of alienation is conceded by the Administration in the agreement with the Sultan of Sulu, which provides that the United States will not sell the Sulu Islands without his consent.

The concession is important as showing that, in the opinion of the Administration, the annexation of the Philippines has not closed discussion as to their future disposition, but the provision itself is derogatory to our sovereignty. We acquired the Sulus from Spain without the consent of the Sultan, and we should not require his permission to dispose of them.

Each country determines for itself the procedure in regard to cession. Some constitutions, that of France among them, require treaties of cession to be submitted to the legislature. The Judicial Committee of the Privy Council is strongly of the opinion that the treaty-making body of Great Britain — the Crown in Council — has full power to cede territory,and this seems to be justified by common precedent; nevertheless, in 1890, the Crown asked the consent of Parliament before ceding Heligoland to Germany.s

The United States have never ceded territory, but in settling international boundaries their treatymaking body has yielded claims to territory; and in the case of the Northeast Boundary the consent of the States interested was obtained. Should a project of cession affect State land the State's consent must be secured, but outlying territory the Federal Government is as free to cede, as to acquire without the express consent of the States.

1 Esmein, Éléments de Droit Constitutionnel, 2d Ed. 5332 Damodhar Gordhan v. Deoram Kanji, i App. Cas. 332, 373.

3 See Anson, The Law and Custom of the Constitution, The Crown, ad Ed. 299.

4 See Moore, International Arbitrations, I, 153; Fort Leavenorth R. v. Lowe, 114 U. S. 525, 541.

5 See Life and Letters of Joseph Story, II, 286,289, for his own and Marshall's thoughts on the question of cession under the powers to make war and peace.


As I have found no legal objection to our treatymaking body annexing land without the consent of the House of Representatives," I find none to its ceding land of its own motion : And territory may be severed, as well as annexed by joint resolution of Congress.

There is no merit in the assertion that recognition of the Constitution in the Philippines, with its consequence of conferring citizenship upon Filipinos, will preclude, legally or morally, our withdrawal from the islands because of its consequence of alienating citizens.

As the extension of sovereignty over territory is a political matter not reviewable by the courts, so is its withdrawal; and in the latter, as in the former case the exercise of power is not preventable by the inhabitants. If we chose to accord to Filipinos permission to elect to retain American citizenship it would be coupled with an obligation to migrate hither within a given time, and we could afford to receive the handful of islanders having the disposition and the money to accept the condition.

Morally, the assertion is disingenuous. There is nothing sacred about a “citizenship” resented by most of its recipients, and begrudged by all its donors.




The negotiations which it is to be hoped will effect the rehabilitation of China may disclose a solution of 1 See supra, p. 6. 2 See supra, p. 7.

3 See supra, p. 61.


our Philippine problem. The perseverance of the
United States in their refusal to acquire land in
China should not only contribute to a just settlement
of this great question of the East, but should enable
them to claim the consideration of the Powers for
their purposes in regard to the Philippines. At
present, however, the result of these negotiations is
too uncertain to suggest any definite course for the
United States in respect of the Philippines. As now
appears, the United States, withdrawing their sover-
eignty from the islands, will be persuaded to a pro-
tectoral relation with a Philippine state.
The President said in his annual message of 1

of 1899:1 The suggestion has been made that we could 'renounce our authority over the islands, and, giving "them independence, could retain a protectorate over “them. This proposition will not be found, I am “sure, worthy of your serious attention. Such an

arrangement would involve at the outset a cruel “ "breach of faith. It would place the peaceable and "loyal majority, who ask nothing better than to ac"cept our authority, at the mercy of the minority of armed insurgents. It would make us responsible “ for the acts of the insurgent leaders and give us no "power to control them.

It would charge us with “the task of protecting them against each other and “defending them against any foreign power with “which they chose to quarrel. In short, it would “take from the Congress of the United States the

power of declaring war and vest that tremendous prerogative in the Tagal leader of the hour.” The humiliating relationship here depicted is a trav

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