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Published online by Cambridge University Press: 04 May 2017
In discussing the relations between the United States and Porto Rico it would seem proper to state at the outset that prior to the Spanish-American War, which may be regarded as the starting point in these relations, they were, so to speak, non-existent, at least in a juridical sense. Before the war, Porto Rico was a Spanish province and as such had no political personality of its own outside of the Spanish dominion and, therefore, it could not as a political entity be regarded as standing in any other relation in respect to the United States than as an inseparable part of Spain, between which country and the United States there existed the relation of one sovereign country in respect to another sovereign country.
1 Messages and Documents, 1898, vol. 1.
2 30 Stat. 738.
3 For. Rel., 1898, 763.
4 Ibid., 765.
5 For. Rel., 1898, 767.
6 Messages, 1898.
7 United States Statutes at Large, 364.
8 Infra, p. 894.
9 “The possession of Porto Rico would be of very great advantage to the military, as it would cripple the forces of Spain”—Letter of Maj. Gen. Nelson A. Miles to the Sec. of War, May 27, 1898. R. A. Alger, The Spanish-American War, p. 51. “I deem the present time most favorable for proceeding immediately to Puerto Rico. I consider it of the highest importance that we should take and keep that island, which is the gateway to the Spanish possessions on the Western Hemisphere, and it is also important that our troops should be landed there as early as possible during the month.” Gen. Miles to Sec. of War, ibid., p. 300.
10 Hall, Porto Rico, p. 69.
11 Alger, supra, pp. 316–317.
12 Gen. Miles to the Sec. of War, Alger, supra, 306–307.
13 Supra, p. 105.
14 The following extracts are taken from an article which appears in Public Opinion, August 11, 1898, reviewing the comments made by the press of the United States at large on the reception accorded to the American troops in Porto Rico:
Chicago News: “The Porto Ricans * * * receive our soldiers with every exhibition of joy; they are ready to volunteer under American officers; they do not object to such rules as Gen. Miles proposes for them during hostilities; and they are ready with the best they have to feed and entertain any one who wears the uniform of the United States.”
New Orleans (La.) Picayune: “It is worthy of notice that the people of the towns in Porto Rico, which have so far been occupied by the United States forces, have expressed much gratification at the fact.”
Providence (R. I.) Journal: “The people of Porto Rico are very glad to see us, or else they are making the best of what they consider a bad matter. Surely we could not ask for a more kindly or effusive greeting. Our soldiers have been bombarded with bananas and cigars instead of bullets and shells and four-fifths of the population are supposed to be genuinely pleased that the sovereignty of Spain is gone forever. There never was a more peaceful progress than the triumphal advance of Gen. Miles’ men. The cities threw open their gates to him and hail him as their deliverer from Spanish oppression. In this they show their good sense.”
Minneapolis (Minn.) Journal: “The people * * * are the kind of people the Americans like. We come bringing them liberty and they welcome us with a reception instead of a battle. There is something inspiring in the idea that our army is welcomed * * * in its true mission—that of liberation of the people. * * * Where they are not restrained by Spanish garrisons they will welcome us not as foreigners, but as fellow-Americans.”
Brooklyn Times: “The principal duty of the United States troops now under the command of Gen. Miles in Porto Rico appears to be the distribution of American flags, the acceptance of hospitalities and a seemingly hopeless search for the enemy.”
15 Annual Report of the Maj. Gen. Commanding the Army, Nelson A. Miles, Nov. 5, 1898, Messages, 1898–1899, pp. 31–32.
16 Foreign Relations, 1898, p. 819.
17 Ibid., p. 821.
18 Foreign Relations, 1898, pp. 822–823.
19 Messages and Papers, 1898–99, p. 20.
20 Foreign Relations, 1898, pp. 827–828.
21 Ibid., 828–830.
22 Ibid.. 830.
23 Hall, supra, 102.
24 The military commission to superintend the evacuation of Porto Rico was composed of the following members: Maj. Gen. John R. Brooke, Rear-Admiral Winfield S. Schley and Brig. Gen. William W. Gordon, for the United States; Gen. of Division (D. Ricardo) Ortega y Díaz, Naval Captain of the First Class (D. Eugenio) Vallarino y Carrasco, and Auditor of Division (D. José) Sánchez del Aguila y León, for Spain. For. Rel., 806; Spanish Red Book, No. 117, p. 149.
25 “War law distinguishes between the invasion and the occupation of a hostile territory. * * * Invasion ripens into occupation when the national troops have been completely ousted from the invaded territory and the enemy has acquired control over it.” Spaight, Rights of War on Land, 321. “The state of invasion corresponds to the period of resistance. * * * It ends and gives place to occupation when the defending troops, in despair of maintaining their lives, retreat and go off.” Pillet, 238, quoted by Spaight, op. cit.
Although the occupation of the island began as soon as there was any part of it placed under the authority of the hostile army of invasion, the term would apply only to that part of the island where such authority was actually established prior to the final evacuation of the Spanish forces. See Article 42 of VI Hague Convention. In the Report of the Military Governor of Porto Rico on Civil Affairs, House Doc, Vol. 14, p. 16, are given the dates upon which the American forces occupied the principal ports of the island.
26 Hall, 6th ed., 458 ff.; Taylor, Sec. 568; Spaight, p. 321; Lawrence, 4th ed., Sec. 176; Oppenheim, p. 95. “But now that the distinction between conquest and military occupation is firmly drawn, the source of an invader’s authority cannot be looked for in a transfer of that of the territorial sovereign. It is a new authority based on the necessities of war and on the duty which the invader owes to the population of the occupied district. II Westlake, 95–96. “The sovereignty over a territory and its population is not transferred till the end of the war, when it may pass by cession in the treaty of peace.” Westlake, op. cit.; Spaight, p. 322.
27 De Lima v. Bidwell, 182 U. S., 1; Dooley v. United States, 182 U. S., 222. “Belligerent or military occupation should also be distinguished from conquest. The rights of a military occupant, however absolute, are in no wise those of a sovereign. They are merely provisional and are based upon military necessity. The occupant may not exact an oath of allegiance and his status is not even that of a temporary or substituted sovereign. The theory of the ‘ temporary allegiance of the inhabitants’ as laid down by some authorities (e. g. by Birkhimer, in Military Government and Martial Law, 2d ed., 1904) and our courts, is, therefore, erroneous.” Hershey, Essentials of International Law, 408 note. See in this connection Shanks v. Dupont, 3 Peters, 246.
“The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace.” Am. Ins. Co. v. Canter, 1 Pet., 511.
28 Article XLIII of the Hague convention respecting the laws and customs of war on land provides that “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Scott, The Hague Conventions and Declarations of 1899 and 1907, p. 123.
As the military occupant by the mere act of the occupation “prevents the legitimate sovereign from exercising his authority and claims obedience for himself from the inhabitants, he has to administer the country not only in the interest of his own military advantage, but also, so far as possible at any rate, for the public benefit of the inhabitants. Thus the present international law not only gives certain rights to an occupant, but also imposes certain duties upon him.” II Oppenheim, 206. See in this connection Cross et al. v. Harrison, 16 How., 164; Fleming et al. v. Page, 9 How., 603; New Orleans v. Steamship Co., 20 Wall., 387; Dooley v. United States, 182 U. S., 222.
29 Halleck, Vol. 2, p. 444; Spaight, op. cit.; Westlake, p. 96, note 1.
30 “The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world, and confirmed by the writings of publicists and decisions of the courts, in fine, from the law of the nations. Halleck, op. cit.; quoted, apparently with approval, by Mr. Justice Brown in delivering the opinion of the court in the case of Dooley v. United States, 182 U. S., 222, at bottom of p. 230.
31 Very shortly after the signing of the peace protocol, General Miles, who, at the time, commanded the United States forces, withdrew from the island, relinquishing personal command to General Brooke.
After General Miles’ departure, by assignment of the President, the command of the troops devolved upon Gen. John R. Brooke, U. S. Army, and when the Spanish evacuation was complete and the military control of the whole island passed from Spain to the United States, October 18, 1898, General Brooke, by virtue of such assignment, became the first military governor of Porto Rico during this second period of American military activities in the island, which is properly designated as the military occupation of Porto Rico by the United States forces. On December 9, 1898, Gen. Brooke was recalled to the United States, and in pursuance of the orders of the War Department, Maj. Gen. Guy V. Henry, U. S. V., became commander of the Department of Porto Rico. On May 9, 1899, Maj. Gen. Henry was relieved upon his own request, and Brig. Gen. George W. Davis, U. S. V., by the direction of the President, assumed command of the department and the office of military governor. House Doc. Vol. 14, p. 17.
32 So far as the military government of the occupied territory was concerned, the only directions and instructions given by the President are contained in General Orders 101, series of 1898, which embodied in substance all the prescriptions of duties, powers and responsibilities devolving upon the military governors of Porto Rico during this period of military occupation of the island.
33 “Indeed, the entire relation between the invaders and the invaded,” says Westlake, op. cit., “so far as it may fall within the criminal deportment whether by the intrinsic nature of the acts done or in consequence of the regulations made by the invaders, may be considered as taken out of the territorial law and preferred to what is called martial law.”
34 House Doc. No. 2.
35 The peace commissioners or plenipotentiaries were as follows:
For the United States: William R. Day, formerly Secretary of State, Cushman K. Davis, William P. Frye, and George Gray, Senators of the United States, and Whitelaw Reid, formerly Minister Plenipotentiary of the United States to France, as commissioners, and John Bassett Moore, as Secretary;
For Spain: Eugenio Montero Ríos, President of the Senate, Buenaventura de Abarzuza, Senator, José de Garnica, Associate Justice of the Supreme Court of Justice, Deputy to the Cortes, Wenceslao Ramírez de Villa Urrutia, Minister Plenipotentiary to Belgium, and Rafael Cerero, General of Division, as Commissioners, and Emilio de Ojeda, as Secretary. Senate Doc. No. 62, pp. 16–19.
36 For the protocols of the sessions of the peace commission and correspondence of the members thereof with their respective governments, see Senate Doc. No. 62, 55th Cong., 3d Sess.; For. Rel. 1898, pp. 904 el seq., and Spanish Bed Book, 1898, Conferencia de Paris y Tratado de Paz de 10 de Diciembre de 1898, pp. 303 et seq.
37 The English text of the treaty will be found in Compilation of Treaties in Force, 1899, pp. 595 et seq.; also in Senate Doc. No. 62, supra, pp. 1 to 12, first part, and pp. 3 to 11, second part; and also in For. Rel. 1898, pp. 831–840. For the Spanish text see the Spanish Bed Book, 1898, pp. 303–315: also Olivart, Tratados de España, XII, 461–472.
38 United States v. D’Auterive, 10 How., 609; Haver v. Yaker, 9 Wall., 32; Hall, International Law, 4th ed., p. 349; Butler, Treaty Making Power of the United States, sec. 383; Crandall, Treaties, Their Making and Enforcement, pp. 213–214.
39 Downes v. Bidwell, 182 U. 8., 244.
40 Ibid.; Dooley v. United States, supra.
The ratification of the treaty was advised and consented to by the Senate of the United States on February 6, 1899, by a vote of 57 to 27, and the treaty itself was ratified by the President on February 7, 1899, and by Her Majesty the Queen Regent of Spain on March 19, 1899. Treaties in Force, 1899, p. 595; Olivart, supra, 474 (note 1).
41 De Lima v. Bidwell, supra.; Dooley v. United States, supra.
42 Report of the Military Governor, supra, p. 26.
43 Raymond v. Thomas, 91 U. S., 712.
44 Chicago, Rock Island and Pacific Railway Company v. Glinn, 114 U. S., 542; Strother v. Lucas, 12 Pet., 410; De Lima v. Bidwell, supra; Downes v. Bidwell, 182 U. S., 288.
45 U. S. Stat, at Large, Vol. 31, p. 77.
46 Report of the Military Governor, supra, p. 27.