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THE COMMITTEE ON THE JUDICIARY

OF THE
SENATE OF THE UNITED STATES,

MARCH 16, 1900

BY

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CARMAN F. RANDOLPH

OF THE NEW YORK BAR

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Jon 64
US 559,29

NOTES ON THE LAW OF TERRITORIAL
EXPANSION, WITH ESPECIAL REFERENCE
TO THE PHILIPPINES.

Before the Treaty of Paris became effective, the disposition of the Philippines was an open question. Then the islands were foreign territory. The United States controlled their disposition, but stood in the broad ways of war and diplomacy uncommitted and uncompelled to a particular course. Now the islands are part of the United States, and our relation to them is defined by the law of the Constitution, complemented by treaty provisions and principles of public law conformable to its supreme authority. This statement is challenged, and the foremost challenger is the Administration, which would hold the islands in firm possession, yet aloof from the United States and beyond the ægis of the Constitution.

THE STATUS OF THE PHILIPPINES.

THE TRANSFER OF THE SPANISH TITLE.

According to the principles recognized by civilized nations as de-
termining national title to land, Spain 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 title than did like shortcomings affect our right to the Far West
in the early days. Nor was her title divested by insurrection, for
the principles of public law affirm the right of a state to territory
as against insurgents who do not maintain a recognized government.
Besides, the insurrection must be viewed in connection with our cam-
paign. Our hostile preparations revived it, our fleet 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. Finally, the United States have put all question of Spain's
title beyond discussion. They have determined its sufficiency by
accepting the islands from her hands.
Being thus entitled to the Philippines Spain had the legal right to

cede them. The United States had the legal right to accept them. The Treaty of Paris expressed the lawful intentions of the signatory powers and brought the islands under the sovereignty of the United States. And it must be insisted that our title to all the land acquired as a result of the war with Spain is derived from Spain exclusively. The President says in his message: “ The authorities of the Sulu Islands have accepted the succession of the United States to the rights of Spain, and our flag floats over that territory."1 This statement may convey the wrong impression that our interest in the Sulus differs in derivation and quality from our interest in the rest of the Philippines—in derivation, because it is strengthened by the consent of the Sultan; in quality, because the statement may imply, what has indeed been asserted, that “the rights of Spain" in the Sulus were those of a protector rather than a sovereign proprietor. The article of cession in the Treaty of Paris was submitted by the American Commission in what proved to be its accepted form, and its precise delimitation of the “Philippine Archipelago " embraced the unmentioned Sulu group. The assertion of the Spanish Commissioners that the “ Philippines” did not include the Sulus and the great island of Mindanao was a play for better terms. They said in effect: “You are willing to pay $20,000,000 for the Philippines.' Here are the ‘Philippines;' if you want Mindanao and the Sulus as well you must pay more.” The American Commissioners replied in effect: “ The Philippines' we demand, and which you will cede without change in terms, include Mindanao and the Sulus.” Of course the victors proved to be better geographers than the vanquished. Throughout the negotiations Spain's ability to transfer the complete sovereignty of all the land demanded by the United States was never questioned, and, whatever

may have been her actual relation to this or that island, she assumed to cede and the United States accepted sovereignty over all. We cannot afford to esteem that sovereignty as less than perfect and all-embracing. We cannot go behind the Treaty of Paris for confirmation of our title to any part of the Philippines. As we have not sought "the consent of the governed" from the people of Luzon, we cannot even appear to recognize its necessity in dealing with slaveholding and polygamous barbarians who are only restrained from piracy by gunboats and blackmail.

This brief certificate of title sufficiently demonstrates our legal right to possess the Philippines, and with legal rights only are we at present concerned.

1 P. 43

THE EFFECT OF CESSION.

Despite our acquisition of the Philippines there is a disposition to balk at its real effect. The islands are called a “colony,” a “dependency," a "province" or other name suggestive of detachment from the United States, but it will appear that by virtue of the character of our occupation they are United States territory.

The United States may happen to control land actually or constructively without making it domestic territory. An occupation of new-found or abandoned or hostile territory involves a certain assumption of sovereignty in respect of the land itself, and also in an international

sense,

for
among

the nations the state in visible control of a country is accounted its sovereign for important purposes. Land occupied through enterprise or conquest does not thereby become United States territory in a domestic sense, even though the act be prompted or approved by the President. The President cannot enlarge the boundaries of the Republic.2 These boundaries mark the territorial jurisdiction of Congress, and Congress cannot be forced to extend its jurisdiction at the pleasure of the President. Land is annexed to the United States when and only when its occupation has been authorized or confirmed by some act of legislation, a statute or treaty, asserting territorial sovereignty. Such an act is the Treaty of Paris by which “Spain cedes to the United States the archipelago known as the Philippine Islands," and "cedes" her “sovereignty” thereof. If the assent of the House of Representatives is necessary to a perfect acceptance it is given by the appropriation of $20,000,000 to carry out the Treaty.

At this point we meet the suggestion that, if the treaty-making body has full power to determine the status of ceded territory, the omission from the Treaty of Paris of a specific designation of the Philippines as United States territory differentiates them from land heretofore acquired by a treaty or an act of Congress recognizing it in more or less definite phrase as incorporated in the United States. I think this suggestion is rebuked by the Treaty itself. The Ninth Article declares that the Spanish-born residents of the ceded islands who shall not elect to retain their old allegiance within a given time shall be deemed to have adopted “the nationality of the territory in which they may reside.” Must not “the nationality” of Philippine territory be that of the United States since we do not recognize the existence of a Philippine

1 Thirty Hogsheads of Sugar, v. U. S., 9 Cranch, 191, 195; Fleming v. Page, 9 Howard, 603, 615. 2 See Fleming v. Page, 9 Howard, 603, 614.

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