The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1899-11-26

and it was generally conceded by the
leading men and newspapers of this
country prior to the February outbreak,
that Spain had utterly failed, after 800
years of incessant warfare. to subdue
the natives or to extend her jurisdic-
ton beyond Manila and few fortified
cities on the sea coast. Spain had
more right to Cuba and Porto Rico
than she had to the Philippines; her
Jurisdiction extended over the whole of
Cuba and Porto Rico; yet we disputed
her right to hold and to govern these
islands as she saw fit. Here is another
point to be considered in determining
the title Spain had in the Philippines
at the time of her alleged transfer OF
ownership and possession: What was
our excuse for remaining there after
the close of the war? 1t has been stated
time and again. Spanish power
had been broken. Spanish authority
had been destroyed. The only govern
ments on the archipelago were those of
the Tagals and the Sulus-the former
official reports to the secretary of the
navy. by Consul Pratt in his official
correspondence with the secretary of
state. and by Consul Wildman, ex-Con-
sui Barrett and other American citizens
acting in official or semi official capaci-
ties for the administration at Washing
ton; the latter recognized by the au-
\ in q
treaty made by the sultan and an
American general detailed and depu-
tized by President Mckinley for that
purpose. Since Spanish authority had
been ended in the Philippines-an au-
thority based upon considerations we
old not feel bound to respect-an au-
thority which was founded upon an
unfinished conquest-whence came the
right of Spain to sell that which she
had not?
There are two essentials to a trans
fer of title to real estate in the trans
actions of nations as well as of men.
The oldest commentators on Roman
law regarded the contract of sale. the
persons acquiring property, wholly in
complete and inadequate within itself;
while the immediate cause. the mo
dus," was the actual delivery of pos
session. In order to obtain ownership
there had to be a perfect titulus and
modus-a perfect right and a perfect
transfer of possession.
Chancellor Kent, in his commentaries,
declares that this general law of
property applies to the right of terri
tory, no less than to other rights; the
practice of nations has been conform
able to this principle, and the conven-
tional law of nations is full of in
stances of this kind"
On page lis, vol. 1, the same author
ity says: Full sovereignty cannot be
held to have passed by the mere words
of the treaty without actual delivery.
To complete the right of property. the
right to the thing and the possession of
the thing must be united. This is
necessary principle in the law of prop
erty in all systems of Jurisprudence"
In a treatise on international law by
Sir Shurston Baker the following prin-
,iple is declared: ''In modern times
sales and transfers of national terri
.ory to another power can only be made
oy treaty or some solemn act of SOW
ereign authority of the state. And such
transfers. of territory do not include
he allegiance of its inhabitants with
,ut their consent, express or implied"
The foregoing is found on page 81.
Turning to page $50 we find: The 1
-ule of public law with respect to the
allegiance of the inhabitants of con-
luered territory is therefore, no longer
o be interpreted as meaning that it is
absolutely and Internationally ac-
luired by conquest, or transferred and
handed over by a treaty as a thing
Issignable by contract and without the
assent of the subject. On the con-
rary, the express or implied assent of
he subject is now regarded as abso-
utely essential to a complete new al
egiance."
1t will not be necessary to quote in
irrational law further to q man of
Or. Westervelt's professional attain
nents; these few excerpts are given
merely for the benefit of the general
'ublic.
Who did possess the rights of own
rship and possession in the Philippines
Spain did not between the close of
he war and the ratification of the !
realty? This is the next question to
e answered. In the light of the |
Declaration of Independence, sustained
nd reiterated in the joint resolution of |
ongress adopted April IS, 1898, we
hould say that the native inhabitants I,
assessed the right TO govern them
elves. or to give their consent to be-
lg governed, which is included in the |
atural and unalienable right of all |
appiness.
AS to their fitness for self govern |
lent it is a matter of comparison any /
ow, and Admiral Dewey has said that I
he Filipinos are better fitted for self /
overnment than the Cubans are. The |
cry first of our. congressional resolu-
ions at the beginning of the war with
pain proclaimed that 1.-The people of
ne island of Cuba are, and of right
ught to be. free and independent"
What inherent, inalienable rights to
had the Cubans that
ERE not possessed by the Filipinos?
lid Spanish rights in Cuba rest upon
ny different basis than Spanish rights
! the Philippines? If she had for