« iepriekšējāTurpināt »
state may, within its international right, protest the matter diplomatically.
Resident subjects of foreign states are permitted no special privileges or exemptions from territorial jurisdiction except those specifically accorded by treaty, such as military exemptions. In these cases the courts by directly enforcing treaty provisions as law may enforce the states' duty of acquiescence.
LIABILITIES ATTACHED TO NEWLY ACQUIRED TERRITORY
The second duty of acquiescence relates to the rights of the inhabitants of newly acquired territory and the liabilities attached to the land. The rules governing these matters are ordinarily spoken of as the law of succession. According to the strict principle of territorial sovereignty, as soon as new territory is acquired, any relations between its inhabitants and the new government would become matters of municipal law. No obligations of international law could exist. The actual law, however, recognizes this case as an exception to the usual rule of complete territorial sovereignty. The land must be taken subject to a kind of servitude. The acquiring state must acquiesce in pre-existing rights of the inhabitants and pre-existing rights of third parties hypothecated upon the territory. These obligations may be classified under three heads: (1) treaties imposing obligations upon the former sovereign, (2) liabilities attached to the territory, (3) rights of the inhabitants derived from the former sovereign.
held that slaves reaching a British warship became free; hence Forbes, the owner of a plantation in Florida, had no action against Cockburn, commander of a public vessel, for affording asylum to and carrying off such fugitive slaves. For extended discussion of rights of asylum on public vessels and limits of local jurisdiction over such vessels in port according to English law, see Report of Royal Commission on Fugitive Slaves, 1876. Great Britain forbade public vessel to give asylum to slaves by an order of 1875, (Br. and For. St. Papers, 66;892). The Royal commission appointed to consider this order held as follows: For right of asylum and extraterritoriality, Phillimore, Bernard, Maine ; Contra, Cockburn, Archbald, Thesiger, H. T. Holland, Fitz James Stephen, Rothery, but they held that asylum might be given as a matter of humanity and in any case the local authorities could not recover the fugitives by entry of the vessel. It is interesting to note that the line of cleavage is between publicists on international law and common law lawyers and judges. See in reference to the work of this commission, Maine, Int. Law, p. 88; Stephen, Hist. of the Criminal Law, 2;57 ; Jour. of Jurisprudence, 20, 1888; Moore, Digest, 2;848.
(1) International law requires the new sovereign to recognize the obligations of treaties concluded by the old sovereign only in case of universal succession. There have been two cases of this character in the history of the United States, those of Texas and Hawaii. Both states had concluded treaties with third parties before annexation. In both cases, in the resolu
" tion of annexation the United States declared all treaties of the former states abrogated. Japan offered some protest to the abrogation of her treaty with Hawaii but the United States disavowed any intention of violating vested rights of Japanese subjects under this treaty, and no specific case seems to have arisen.57
(2) The second case has arisen in connection with the annexation of Texas and Hawaii and the cessions of Spain following the war of 1898.58 The United States assumed by statute liabilities hypothecated upon the revenues to a specified amount in the first two cases.59 In the case of the Spanish cessions the
56 See Treaties of Texas with France, 1839, Marten's N. R., 16;987: with Great Britain, 1840, Marten's N. R. G., 4;1506: 1841, Ibid, 4;609 : with Netherlands, 1840, Ibid. 1;375: See Moore's Digest, 1;456. Texas had also concluded treaties with the United States, see Malloy, pp. 1778-9, which were of course abrogated by annexation. See treaty of Hawaii with Japan, 1886, Br. and For. St. Pap., 77;941.
57 Joint Resolution, Mch. 1, 1845, 5 Stat. 797 ; July 7, 1898, Sec. 4, Germany claimed that she retained special rights in the Zulu Archipeligo under protocol with Spain of Mch. 11, 1877, after cession of the Philippines to the United States, a contention denied by the United States. See Moore's Digest 5; 346-352.
58 The Act of Aug. 8, 1790, sponsored by Hamilton, whereby the na. tional government, as succeeding to much of the sovereignty of the states by the constitution of 1789, assumed their Revolutionary debts to the amount of $21,500,000, may also be cited as a recognition of the duty of the successor to sovereignty. I Stat. 142, Sec. 13.
59By the joint resolution of Mch. I, 1845, 5 stat. 797, consenting to the admission of Texas to the Union, it was specified that Texas should retain public funds, debts, taxes and dues owed the Republic, and vacant lands, to be applied to the payment of debts which were in “no event to become a charge upon the United States.” By an act of Sept. 9, 1850, 9 Stat. 446, on consideration of a boundary modification and relinquishment by Texas of "all claims upon the United States for liability of the debts of Texas” the United States agreed to pay $10,000,000 to the state, half of which was to be retained until "the creditors of the state holding bonds and other certificates of the state of Texas for which duties on imports were specially pledged shall first file at the Treasury of the United States, United States refused to include in the treaty of peace a provision presented by the Spanish plenipotentiaries by which the United States was to assume “all charges and obligations of every kind in existence at the time of the ratification of the treaty of peace which the crown of Spain may have contracted lawfully in the exercise of the sovereignty hereby relinquished and transferred, and which as such constitute an integral part thereof."60 It also rejected a provision requiring that “grants and contracts for public works and services' in Cuba, Porto Rico, and the Philippines be maintained in force until their expiration, in accordance with the terms thereof, the new government assuming all the rights and obligations thereby attaching up to the present time to the Spanish government. It, however, disavowed, any purpose “to disregard the obligations of international law in respect to such contracts. A number of claims based on Spanish concessions were presented to the government and were variously settled in accordance with opinions of attorneys general and law officers of the War Department, which was then administering the Islands.82 example may be mentioned the case of the Manila Railway Co., a corporation subsidized by the Spanish government which
releases of all claims against the United States." As few of the Texan bonds were specifically pledged upon imports, the act gave rise to question, but was held to require payment of all bonds. (See Cushing Att. Gen. 6 op. 130, (1853), Corwin, Sec. of Treas., Sen. Ex. Doc., 103, (34th Cong. ist Sess, p. 406-7). In the British claims arbitration of 1853, claims for Texan bonds were presented and the commission held that the United States was not liable, hence these claims were not within the competence of the arbitral court. The matter was concluded by an act of Feb. 28, 1855, 10 stat. 617, by which the United States agreed to pay Texan debts for which the revenues of the state were pledged to the the amount of $7,750,000, to be apportioned pro rata among the creditors. See Moore's Digest, 1;343-347. In the Joint Resolution of July 7, 1898, annexing Hawaii. "the public debt of the Republic of Hawaii” was assumed by the United States to an amount not to exceed $4,000,000. See Moore's Digest, 1;351.
60 This applied to Cuba and Porto Rico. See Moore's Digest, 1;352. The United States delegation held that these obligations were incurred in a fruitless effort to pacify the Islands extending over a long period of years. The expenditure did not benefit the Islands and should be considered liabilities of the Spanish nation, not of the Islands. See Moore's Digest, 1;351-385.
61 Moore's Digest, 1;389-390.
62Griggs. Att. Gen., 22 op. 310, 408, 514, 520, 546; 23 op. 181; Knox, Att. Gen. 23 op. 451.
claimed a continuance of the periodic subsidies by the new government. The law officer of the Division of Insular affairs of the War Departmento3 advised the non-allowance of the claim, holding it to be a personal obligation of the Spanish sovereign, but the attorney general64 took a contrary view, and in an official opinion held that the United States was liable for this obligation under international law.
To summarize, the United States has generally acknowledged its obligation to pay debts pledged on the revenue, and contracts for the improvement of territory to which it has succeeded. It however, denied such an obligation with reference to the general public debt of the dismembered state, in cases of partial succession.
(3) Certain rights of the inhabitants have generally been specified in treaties ceding territory to the United States. Freedom to leave the country and retain their former allegiance without loss of property, and in case of election to remain in the territory, guarantees of civil rights, religious liberty and sometimes admission to American citizenship have generally been so stipulated.85 Similar provisions have been contained in resolutions, statutes and executive orders relating to the annexation, government and administration of new territory.66 By enforcing these provisions the courts have enforced the government's obligations under international law.
The enforcement of constitutional guarantees also acts to protect the rights of inhabitants of such territory, but the courts have drawn distinctions as to the applicability of these guarantees to different kinds of acquisitions. All of the constitutional
63 Magoon's Reports, 177.
64Griggs Att. Gen., 23 op. 181; Knox Att. Gen., 23 op. 1,451. See Moore's Digest, 1;389-410.
65Treaties with Great Britain, 1783, art. 4, 5, 6, Malloy, p. 586; 1840, art. 3, p. 656; France, 1803, art. 3, 6, p. 508; Mexico, 1848, art. 8, 9, II, P. M11; 1853, art. 2, 5, p. 1121; Russia, 1867, art. 3, p. 1523; Spain, 1819, art. 5, 6, 8, p. 1653; 1898, art. 9,-12, p. 1690.
66See Northwest Ordinance, July 13, 1787; Act. Aug. 7, 1789; in reference to Louisiana, Act. Oct. 2, 1803, 2 Stat, 245; Mch. 19, 1804, 2 Stat. 272; in reference to Texas, Joint Resolution, Mch. I, 1845, 5 Stat. 797 ; Act
5 Sept. 9, 1850, 9 Stat. 446, Feb. 28, 1855, 10 Stat. 617; In reference to New Mexico, Act. Mch. 3, 1891, 26 Stat. 854; in reference to Hawaii, Joint Resolution, July 7, 1898, Act. Apr. 30, 1900; in refernce to Porto Rico, Act Apr. 12, 1900, May 1, 1900; in reference to Philippines, Act July 1, 1902, Mch. 9, 1902; in reference to Guano Islands, Act 1856, Rev. Stat. 5570-5578.
guarantees apply to incorporated territory such as Alaska, and territory contiguous to the original colonies, but those conferring privileges not “natural rights," but of a technical nature relating peculiarly to the common law, such as trial by jury, or of a political nature such as citizenship, do not apply to inhabitants of unincorporated territory, such as the Philippines, Hawaii, and Porto Rico.68 None of the constitutional guarantees appear to apply to territory temporarily occupied and under military government,69 or to consular jurisdiction. It appears, however, that the confiscation of property or the deprivation of life or liberty of persons without “due process of law” in actually acquired territory, would be prevented by constitutional guarantees.
The United States courts have held that all public law relating to forms of government, revenue systems, and administration is abrogated by change of sovereignty,1 but in a number of cases the executive has by order continued the former administrative authorities, in which case their acts are valid." The
67 Rasmussen vs. U. S., 197 U. S. 510.
68 For this distinction and reference to "natural rights” see Justice Brown, in Downes vs. Bidwell, 182 U. S. 244, 282. For its application to Hawaii, Hawaii vs. Mankichi, 190 U. S. 197; to the Philippines, Dorr vs. U. S., 195 U. S. 138; and to Porto Rico, Gonzales vs. Williams, 192, U. S. 1.
69Neeley vs. Henkel, 180 U. S. 109, 122. 70In re Ross, 140 U. S. 453, 464.
r1 Harcourt vs. Gaillard, 12 Wheat. 523; New Orleans vs. U. S., 10 Pet. 602; Davis vs. Concordia, 9 How. 280; U. S. vs. Vaca, 18 How. 556; Am. Ins. Co., vs. Canter, 1 Pet. 542; Pollard vs. Hagan, 3 How. 212-225; U. S. vs. Reynes, 9 How. 127; U. S. vs. D'Auterine, 10 How. 609; Montoult vs. U. S., 12 How. 47; U. S. vs. Yorba, 1 Wall. 412; Stearnes vs. U. S., 6 Wall. 589; U. S. vs. Pico, 23 How. 321 ; Moore vs. Steinbach, 127 U. S. 70; Alexander vs. Roulet, 13 Wall. 386; Mumford vs. Wardwell, 6 Wall. 423. See Moore's Digest, 1;304-311. For effect of succession on Revenue Laws, see Flemming vs. Page, 9 How. 603; Wirt, Att. Gen., I op. 483, (1821); Cross vs. Harrison, 16 How. 164; President's Proclamation, July 25, 1901, and Insular Cases, DeLima vs. Bidwell, 182 U. S. 1; Downes vs. Bidwell, 182 U. S. 244; Dooley vs. U, S. 182 U. S. 222; Armstrong vs. U. S. 182 U. S. 243; Huus vs. N. Y. & Porto Rico, Steamship Co. 182 U, S. 392; Goetz vs. U. S. 182 U. S. 221 ; Crossman vs. U. S. 182 U. S. 221; Fourteen Diamond Rings, 103 U. S. 176; Dooley vs. U. S. 183 U. S. 151. See Moore's Digest, 1;311-332.
72 Joint Resolution, July 7, 1898, in reference to Hawaii; War Dept. Circular, Feb. 1899, in reference to territory under military government; act May 1, 1900, in reference to Porto Rico. See Ely's Adm. vs. U. S. 171 U. S. 220, 230, (1898). Moore's Digest, 1:306-308.