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occasion, but the will of the people, as voiced by the leaders of Porto Rican public opinion and thought.
7. THE SIGNING OF THE TREATY OF PARIS AND THE MILITARY REGIME FOLLOWING THE RATIFICATION OF THAT TREATY
The commissioners who, pursuant to Article V of the Procotol of Washington, were to negotiate a treaty of peace upon the basis laid down in said procotol between the United States and Spain, being duly appointed by their respective governments,35 met at Paris on the first of October, 1898, and, after prolonged negotiations extending over a period of more than two months, on matters referring to Porto Rico only in a few particulars, they agreed upon the terms of a treaty of peace, which is now known as the Treaty of Paris.36 This treaty, which was signed at the said City of Paris on the 10th of December, 1898, contained, among others, the following stipulations:
Spain cedes to the United States the Island of Porto Rico and other islands now under Spanish sovereignty in the West Indies. * * *
Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have
K 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 Rios, President of the Senate, Buenaventura de Abarzuza, Senator, José de Garnica, Associate Justice of the Supreme Court of Justice, Deputy to the Cortes, Wenceslao Ramirez 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.
"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 et seq., and Spanish Red Book, 1898, Conferencia de Paris y Tratado de Paz de 10 de Diciembre de 1898, pp. 303 et seq.
the right to carry on their industry, commerce and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.
The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.
The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of their religion.
There were also provisions concerning various matters more or less affecting Porto Rico or individuals residing or having their homes in the island, in respect to their persons or property, and to property belonging to the public domain, as well as to judicial proceedings pending at the time of the exchange of ratification of the treaty, rights of property secured by copyrights and patents acquired by Spaniards in Porto Rico, privileges extended to Spanish scientific, literary and artistic works, the establishment of Spanish consular offices and treatment of the merchant vessels of each government by the other in respect of port charges, etc.
By Article XVII it was likewise stipulated that this treaty should be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by her Majesty the Queen Regent of Spain, which was in accordance with the constitutional provisions of both countries; and that the ratifications should be exchanged at Washington within six months from the date thereof, or earlier if possible.37
It is to be observed that by this last stipulation the negotiators, pursuant to Article V of the Protocol of Washington, made the opera
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 Red Book, 1898, pp. 303-315: also Olivart, Traiados de Espana, XII, 461-472.
tion of the whole treaty to depend on the ratification and exchange of ratifications of said instrument at the time and place therein set forth and provided. So long as this was not accomplished, the status of the island and its inhabitants necessarily remained as before; for although the mere signing of the treaty had in fact an immense political significance and the exchange of ratifications, as a principle of international law, was to be considered as having a general retroactive effect, dating back to the time of such signing as respects the rights of the high contracting parties, the treaty itself did not become operative till the exchange of ratifications, and consequently could not as yet have any legal effect whatever upon the island or its inhabitants.38 It is, therefore, evident that the period of military occupation, starting with the withdrawal of the Spanish troops and government from Porto Rico, was not interrupted by the mere signature of the treaty, since it did not operate to alter the relations then existing between the United States and Porto Rico, although it did in reality make more probable than ever the forthcoming change originally contemplated by the Procotol of Washington.39
But after the treaty was ratified and its ratifications were exchanged at the City of Washington, which was accomplished on April 11, 1899, the whole situation changed, since by that solemn act the treaty became in full force and effect and all its provisions were rendered operative by its mere realization. On that date, although referring back to the time of signing, the cession of Porto Rico by Spain to the United States became an accomplished reality in law as well as in fact, and consequently the relations between the United States and Porto Rico entered into a new stage,40 of which we shall speak hereafter.
For the present we shall confine our discussion of the subject to a brief consideration of the general nature and character of the government
88 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.
» Downes v. Bidwell, 182 U. S., 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).
which followed the formal acquisition of Porto Rico by the United States.
In the first place, it must be remembered that the government which was then existing in the island was founded upon the laws of war, and that as a strictly military government its powers were superior to all laws in force, and thus it could change, alter or abrogate any or all such laws in accordance with the peculiar military necessities- that should arise.
As one of the immediate effects of the Treaty of Paris was to put an end to the fictitious state of war which, in a technical sense, had endured in the island after the notification of the signing of the Protocol of Washington to the commanders of the opposing forces, it would seem that the military rule which had been called into existence by the war became unjustifiable and unnecessary upon the exchange of ratifications of that treaty, especially so if it is taken into account that actual peace and order existed throughout the whole length and breadth of the island during all the time of the military occupation.
It is not meant by this to suggest, however, that the government then subsisting in Porto Rico was to be considered as ceasing or being defunct from the moment that the Treaty of Paris became effective. On the contrary, as Congress, which upon the act of cession became the only power under the Constitution having authority to legislate for the newly acquired territory, had adjourned, after ratifying the treaty, without making the slightest provision for the future management or disposition of the island, a situation was created which, on account of its very anomalous features, imperatively demanded, that the same military regime be preserved and continued as a government de facto. Under the circumstances, there was no other alternative but the suppression of all authority, which would imply a state of lawlessness, of political disorder, in a word, anarchy, and this, in the present state of the world, even the most cultured people could not afford to wish for or even to tolerate.41
As a matter of fact, this solution was nothing more than military force applied for the retention of the island until Congress should decide what disposition was to be made of it. This force carried with it authority, and since the commanding general in the island was without specific instructions to regulate his administration of civil affairs according to 41 De Lima v. Bidwell, supra.; Dooley v. United States, supra.
any theory of the extension or denial to Porto Rico of the constitutional guarantees,42 which were now the only ones that could protect the inhabitants against the misuse or abuse of powers, or restrict or control the governor in the exercise of an honest and sound judgment as to the advisability of changing, altering or annulling existing laws or creating new ones for the better protection of the civil population in their persons, properties and mutual relations, he proceeded to exercise the same functions as before, abolishing many laws and establishing others, among which may be mentioned, to the honor of General Davis, the institution in Porto Rico of that bulwark of American liberties, the writ of habeas corpus, and trial by jury in criminal cases.
It is to be remarked, however, that while this government was in fact a mere continuation of the former, since there was no real change made in its organization, methods or appointments, and pro hoc vice was to be considered as empowered to retain the direction, management and control of public affairs, its powers extended only to the preservation of the established order of things until the proper and legitimate constitutional authority having jurisdiction of the matter, the Congress, should make such provision as it might consider proper and fit to the new conditions developed.43 In a sense this government might be deemed to be an entirely new one. Although military in character, as the former, it was of a different nature from its predecessor. This new military regime was not international in its nature, as the reasons which prompted its establishment were not such; it was rather a municipal affair, since its foundations were to be found, not in an international obligation, but rather in a constitutional necessity arising out of conditions purely internal in their nature, significance and scope. With the cessation of the war, the old government having lost its international nature, became, ipso facto, by virtue of the cession, a national institution, subject to all the limitations imposed upon its powers by the Constitution. As one of the immediate constitutional effects of the cession was to place the island directly under the exclusive legislative authority of Congress, it would seem to follow that, in the absence of urgent military necessity, the subsisting government was purely administrative in character, and had no legislative
u Report of the Military Governor, supra, p. 26. » Raymond v. Thomas, 91 U. S., 712.