Staaten Nr. 11978. perty taken by the American army since its occupation of the place, and all Vereinigte the taxes of every kind collected or to be collected up to the time of returund Spanien. ning the same; || 4. The recognition of the obligation on the part of the 9. Nov. 1898. United States to indemnify Spain for alleged serious damage occasioned by the detention as prisoners of her troops, to which detention it is alleged is due the spread with impunity of the Tagalo insurrection in Luzón and its invasion of the Vizayan islands, and, moreover, because to the same has been due the alleged ill-treatment of thousands of Spanish prisoners, military and civil. In the dilatory assertion of these extraordinary claims the Spanish Commissioners have at times repudiated and at other times have appealed to and claimed rights under the stipulations of a convention entered into between Spain and the United States, by and under which the rights, duties, liabilities and status of the contracting parties were explicitly settled. That convention is the Protocol of August 12, 1898. || It is contended by the American Commissioners that an establishment of the status quo provided for by that Protocol, and comprehended within its intent and meaning upon a fair construction of its terms, is the only demand that Spain can, upon her own theory, make in the premises, even if it is hypothetically conceded, for the mere purposes of this branch of the discussion, that the legal propositions which she advances are at all applicable to the alleged breach of the armistice. For the United States insists and has always insisted (except hypothetically as stated above and merely for purposes of this argument) that the military operations by which Manila was captured were justifiable and lawful. The status quo is the right of the United States to occupy and hold the city, harbor and bay of Manila pending the conclusion of a treaty of peace which shall determine the control, dispositiou and government of the Philippines. That condition exists. The United States does so hold such territory. It has been so conceded and insisted by Spain in correspondence which will be particularly considered in another portion of this paper. That occupancy is referable to, and is justified by, the Protocol, and cannot be defeated by the alleged illegality of hostilities. To so invalidate it, it will be necessary for Spain to denounce and repudiate the Protocol in all its parts, including, of course, the authority under which this Commission is proceeding and the stipulation for an armistice, and thus produce a renewal of active war, as we shall elsewhere more fully demonstrate. || It is maintained by the American Commissioners that all and singular the acts done after the surrender of Manila and complained of by Spain were and are rightful acts under the Protocol itself; that they would have been rightful if no naval or military operations whatever had been conducted against that city after the signature thereof, and that their rightfulness is not impaired by such hostile operations. || The Protocol presents two features: One, general in its character, pertaining to negotiations for peace; the other, subordinate and special in its provisions, pertaining to the capitulation of the city of Manila and its bay and harbor, but which is also an inseparable part and parcel of the stipulations and pro- Nr. 11978. Vereinigte cesses by which a treaty of peace is to be effected. Staaten 9. Nov. 1898. The second of these features presents a case of the military capitulation und Spanion. of a certain defined territory, to be occupied and held by the United States "pending the conclusion of a treaty of peace which shall determine the control, disposition and government of the Philippines". This stipulation is sometimes ignored and sometimes relied upon by the Spanish Commissioners to meet the various exigencies of their argument. || The Spanish Commissioners are entirely correct in treating this particular stipulation of the Protocol (as they do in one branch of their argument) as a military convention providing for a capitulatiou, and in citing (as they do) the laws of war applicable to military occupancy of a conquered or surrendered portion of the territory of one of the belligerents. If, therefore, as the American Commissioners contend, the acts complained of, and for which Spain now demands reparation, were rightful acts under the Protocol, and could rightfully have been done by that Government if no hostilities whatever had been conducted against Manila after its signature, the entire contention of Spain for reparation on account of those acts fails. The Protocol, as respects the occupation by the United States of the city of Manila and its bay and harbor, was, as we have observed, a military convention for the capitulation of certain territory therein specifically defined. When executed by the United States taking possession it presented a case of military occupation of that certain defined territory, and vested in that Government all the rights which the laws of war give to a military occupancy. This capitulation was general in its character and terms. It comprehended the defined territory and all that it contained, including the forts, the munitions of war, the barracks. It included every thing and every person left in the city by Spain. It included the garrison for that reason. Under the special circumstances of the case the surrender of the garrison was necessarily contemplated by the Protocol. The city was closely besieged on the land side by the insurgents. It was in extremity for provisions and the insurgents controlled the water supply. The Spanish forces had been unable to raise the siege, and therefore could not escape from the city on the land side. The city was blockaded by the American fleet; the fleet of Spain had been destroyed and there was no escape for her troops by water. The conditions were such that even if an escape could have been effected by land or sea, the forces of Spain would have had no base whatever for any military operations. So clearly was this the situation that the Spanish Commander-in-Chief fled from the city shortly before it was attacked, took refuge on a neutral man-of-war, and was conveyed by it to Hong Kong. Had it been intended that the garrison should be permitted to depart from the capitulated city, the usual provision would have been made that it should march out with its arms and with the honors of war. Containing no such provision, the exaction that the Spanish troops should surrender to the occupying power Staaten 9. Nov. 1898. Nr. 11978. was as justifiable and legal under the Protocol as was the taking possession Vereinigte by that power of the forts, barracks and munitions of war. Consequently, und Spanien. no rightful claim whatever against the United States can be made that afterwards it refused to permit the capitulated army to resume its arms and proceed beyond the limits of the capitulated territory as an organized military force for the purpose of suppressing the Tagalo insurrection, or for any military purpose whatsoever. That this has always been the position of the United States upon this question plainly appears from the diplomatic correspondence between the two Governments, and particularly in the letter of the Secretary of State to Mr. Cambon dated September 16, 1898. The argument which would sustain the right of Spain to the release of her army would, with equal cogency, support a claim on her part to have delivered up to her for the same purpose a ship of war that might have been included in the capitulation, and all the munitions of war which came into the possession of the United States under and by virtue of its stipulated right of occupancy. In all cases where, pending war, a certain defined part of the territory of one of the belligerents is by the terms of a military convention, agreed to be put in the military occupation and possession of the other belligerent, the sovereignty of the occupying party (the United States in the present instance) displaces or suspends the sovereignty of the other belligerent and becomes for the purposes of the military occupation a substitute for it. It is not necessary to multiply citations of the many authorities which sustain this proposition. General Halleck's work on International Law has been invoked by the Spanish Commissioners and the citations in this paper will be limited to that work, observing that they are made from the chapter which treats of the rights of military occupation during war as contradistinguished from the rights of a complete conquest. "Capitulations are agreements entered into by a commanding officer for the surrender of his army, or by the governor of a town, or a fortress, or particular district of country, to surrender it into the hands of the enemy." (Halleck, Vol. II, p. 319.) || "It follows, then, that the rights of military occupation extend over the enemy's territory only so far as the inhabitants are vanquished or reduced to submission to the rule of the conqueror. Thus, if a fort, town, city, harbor, island, province, or particular section of country belonging to one belligerent, is forced to submit to the arms of the other, such place or territory instantly becomes a conquest, and is subject to the laws which the conqueror may impose on it; although he has not yet acquired the plenum dominium et utile, he has the temporary right of possession and government." (Halleck, Vol. II, p. 434.) || To consider more specifically the claims advanced by the Spanish Commissioners: || The first is, that Spain "is entitled to the immediate delivery of the place (Manila) to the Spanish Government." || To do this would contravene the provisions of the Protocol by which it is agreed that "the United States will occupy and hold the city, Vereinigte bay and harbor of Manila pending the conclusion of a treaty of peace," which Nr. 11978. treaty the two Commissions have been negotiating ever since October 1, 1898. Staaten They are negotiating under the Protocol. That instrument is an entirety, und Spanien. Neither party, having entered into it and continued the negotiations for which 9. Nov. 1898. it provides to a date more than two months after the acts were done of which Spain now complains, can now allege such acts as grounds for the rejection of the obligation of that instrument. If any right of repudiation. ever existed, it should have been asserted in due time as against the entire instrument and all of its provisions. This has never been attempted. On the contrary, the contracting parties have proceeded to negotiate, agree, and perform under the requirements of that instrument. | By so doing, Spain has waived the alleged breaches of the Protocol which she now advances. The second demand is for the immediate release of the garrison of Manila. We show in another place that this garrison was, under the facts and circumstances, necessarily included in the capitulation provided for by the Protocol. The third demand is for the return to the Spanish Government of all funds and public property taken by the American army since its occupation of the place (Manila) and all taxes of every kind, collected or to be collected. || We have maintained in another portion of this paper that the occupation of Manila is justly referable to the Protocol; that that instrument is a military capitulation; that the effect of the occupancy by the United States was to suspend the sovereignty of Spain in the territory so occupied, and to substitute for the purposes of military occupation the sovereignty of the United States. It follows upon principle and authority from these considerations that the United States had the right to take the public property, and to collect the taxes demanded, and has the right to retain the same. "Political laws, as a general rule, are suspended during the military occupation of a conquered territory. The political connection between the people of such territory and the state to which they belong is not entirely severed, but is interrupted or suspended so long as the occupation continues. Their lands and immovable property are, therefore, not subject to the taxes, rents, etc., usually paid to the former sovereign. These, as we have said elsewhere, belong of right to the conqueror, and he may demand and receive their payment to himself. They are a part of the spoils of war, and the people of the captured province or town can no more pay them to the former government than they can contribute funds or military munitions to assist that government to prosecute the war. To do so would be a breach of the implied conditions under which the people of a conquered territory are allowed to enjoy their private property, and to pursue their ordinary occupations, and would render the offender liable to punishment. They are subject to the laws of the conqueror, and not to the orders of the displaced government. Of lands and immovable property belonging to the conquered state, the conqueror has, by the rights of war, acquired the use so long as he holds them. The Staaten Nov. 1898. Nr. 11978. fruits, rents and profits are therefore his, and he may lawfully claim and Vereinigte receive them. Any contracts or agreements, however, which he may make d Spanien. with individuals farming out such property, will continue only so long as he retains control of them, and will cease on their restoration to, or recovery by, their former owner." (Halleck, Vol. II, p. 437.) || "During the war of 1812 the city and harbor of Castine, a port of the United States, was taken and occupied by the British forces: their commander proceeded to levy and collect customs duties. The question of his right to do so and the suspension of the sovereignty of the United States was afterwards adjudicated by the Supreme Court. "By the conquest and military occupation of Castine,' says the Supreme Court, 'the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for where there is no protection or allegiance or sovereignty there can be no claim to obedience. Castine was, therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants were subject to such duties only as the British Government chose to require. Such goods were in no correct sense imported into the United States.'" (Halleck, Vol. II, p. 446-447.) || "The moneys derived from these sources may be used for the support of the government of the conquered territory, or for the expenses of the war." (Halleck, Vol. II, p. 447.) || "Those who are permitted to hold commercial intercourse with such territory, whether they be subjects of the conqueror, or of foreign States, must conform to the regulations, and pay the duties established by the conquering power; and, in case of conquest by the United States, the President, in the absence of legislative enactments, exercises this power." (Halleck, Vol. II, p. 446.) || "We will next consider the effect of a military occupation of a State upon debts owing to its government. Does such conquest of the state carry with it the incorporeal rights of the State, such as debts, etc.? In other words, do these rights so attach themselves to the territory that the military possession of the latter carries with it the right to possess the former? There are two distinct cases here to be considered: First, where the imperium of the conqueror is established over the whole State (victoria universalis); and, second, where it is established. over only a part, as the capital, a province, or a colony (victoria particularis). As has already been stated, all rights of military occupation arise from actual possession, and not from constructive conquests; they are de facto, and not de jure rights. Hence, by conquest of a part of a country, the government |