Page images




ONG ago, Spain became entitled to the Philippine LIslands in accordance with the public law of the period respecting the discovery and occupation of land. The application of this law in America has been described by Chief Justice Marshall in terms pertinent in regard to the Indies: “On the dis

covery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire.

Its vast extent offered an ample field to the ambi“tion and enterprise of all; and the character and

religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample com“pensation to the inhabitants of the new by be“stowing on them civilization and Christianity in exchange for unlimited independence. But, as they 'were all in pursuit of nearly the same object, it was “necessary, in order to avoid conflicting settlements "and consequent war with each other, to establish a “principle which all should acknowledge as the law "by which the right of acquisition, which they all

"asserted, should be regulated as between them“selves. This principle was that discovery gave "title to the government by whose subjects, or by “whose authority, it was made, against all other

European governments, which title might be “consummated by possession.

“The exclusion of all other Europeans necessarily ' gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. It was a right “with which no Europeans could interfere. It was a right which all asserted for themselves, and to the "assertion of which, by others, all assented.” 1

The circumstances of Spain's tenure of the Philippines are of historical rather than legal interest, for the law in respect of national title to land takes no account of its origin, nor of any subsequent transfers which in private transactions would form what is called a chain of title. The state having possession under claim of title is regarded as the sovereign proprietor without reference to the manner of acquiring it. Often this rule secures the fruits of oppression and fraud, yet none other is practicable. As the alternative of disorder, the status quo

demands respect from the generality of states until, through some convulsion of war, or some compact a new order comes into being, thenceforth legitimated until it in turn shall be changed. And through just war or compact lands held wrongfully are sometimes regained by their proper sovereigns. According to these principles Spain, at the out

1 Johnson v. McIntosh, 8 Wheaton 543, 572.

break of the war, possessed the Philippines in exclusive sovereignty. That she had not reclaimed all parts of the Archipelago, nor bent all its savage tribes to her will no more affected her possession than did like shortcomings affect our possession of the western wilderness in earlier days.

But some contend that the title enjoyed by Spain at the beginning of the war was, at the making of the

Treaty of Paris, so shattered by insurgent Filipinos that Spain had really nothing to convey to the United States. This declaration is based on a questionable fact and a serious misapprehension of law. From the battle of Manila Bay to the capture of Manila the insurrection is not separable from our campaign. Our hostile preparations revived it; our ships brought back its leader; our aid made it so formidable that when Manila fell Spain was mistress only of the few towns in which her troops were huddled. During this period the insurgents were, practically, our allies, and it is contemptible to belittle, now, their service in arraying the native population against Spain. Yet the relation was not that equal alliance between states which creates reciprocal obligations under international law, but rather an unequal alliance between a state and a rebellious people who make common cause against the latter's sovereign.

Even if a just estimation of the facts had approved the claim of the insurgents to an independent conquest of the greater part of the islands, they would not have made good a legal title to the land against Spain: For a state does not lose title through insurrection unless an insurgent government holds

1 See The Resolution, 2 Dallas 1.

territory beyond the likelihood of reconquest; and recognition of this government by neutral states is, generally, the sign of a new order.

The United States have respected this rule abroad, notably in insurrections of Spanish-American colonies. They succeeded in securing its benefit for themselves in the Civil War, when, during four years, an insurgent government governed a large territory from a fixed capital, and kept great armies in the field: And, though the proper application of the rule is always a matter of delicacy, technically, the United States have acted within their rights in accepting it in the case of the Philippines.

Finally, the United States have put all question of Spain's title beyond discussion. By accepting the islands from her hands, they have determined its sufficiency for themselves, and no other nation is concerned to question it.

Being entitled to the Philippines, Spain had the legal right to cede them, as well by the particular law of her Constitution as by the principles of public law.


The Right and the Method

The United States have the right to enlarge their territory, and the field of its exercise is not restricted by any legal limitation. “ The Constitution confers “absolutely on the government of the Union the

« PreviousContinue »