ing in the premises, because it is equivalent to an implied recognition of the validity of the Spanish view on the subject, which, after all, is elementary and which as a current doctrine has never been attacked by anyone.

Nevertheless they endeavor, upon arguments analogous to those set forth in the said reply of the Government of the United States to the note of the Government of Madrid, of September 7 last, to invalidate the Spanish claim as to the capitulation of Manila, for being tardily made. The Spanish Commissioners are unable to see the force of this argument. The Government of Madrid formulated this claim with every solemnity in the said note, or in other words, twenty-three days after the capitulation of Manila. What laws or practice justify holding a claim of this kind as forfeited, when not presented before the twenty-third day subsequent to the act giving rise to it?

Entering into the field of the intentions of the Spanish Government, it is stated further that the latter supposed that the above act of war had been perfectly correct, when a few days later it requested of the American Government permission to transport provisions to the Philippines and reestablish its regular mail service. When this occurred, the Spanish Government was still ignorant of the events which had taken place on the 14th of that month in Manila. The American Commission also leaves it to be understood that this is so. But even if the Spanish Government had been cognizant of those events, what permission is that which it is supposed the Spanish Government requested? What happened was only what could not fail to occur between Governments which, although enemies, observe at all times the duties which uprightness imposes upon all.

The status quo growing out of the suspension of hostilities prohibited each of the belligerents from improving his situation to the prejudice of the other while such status lasted. The Spanish Government, like any other which does not wish to fail in its said duties, was bound to communicate to the American Government, acting in concert with it, the reestablishment of the service which existed prior to the war. The Government of Washington acted in the same way when on August 16 it requested the consent of the Government of Madrid to reestablish the telegraphic service between Manila and Hong Kong.

Let it be acknowledged then that the claim of the Spanish Government was lodged in time, and that even if it had not been then presented, its Commission was authorized to make it now, since it is empowered to ask for everything that shall lead to a faithful and strict carrying out of the convention of Washington.

It is therefore settled, since it has not been contradicted in the American memorandum to which this is a reply, that the suspension of hostilities agreed upon in the 6th Article of the Protocol went into legal effect immediately after the latter was signed on the afternoon of August 12 of this year. And let it be borne in mind that "if there is one rule of the law of war more clear and peremptory than another, it is that compacts between enemies, such as truces and capitulations, shall be faithfully adhered to, and their non-observance is denounced as being manifestly at variance with the true interest and duty, not only of the immediate parties, but of all mankind". The American Commissioners will not repudiate these words as they are those of their learned countryman, the eminent Wharton, in his Digest of international Law, made up of passages taken from Presidents, Secretaries of State, decisions of Federal Courts, and opinions of Attorneys General.

Have the provisions of the 6th Article of the Protocol been observed

with this scrupulousness? On the 13th day of August the city of Manila was bombarded and on the 14th it surrendered.

The Spanish Commissioners have no reason whatever for asserting that the Commanders of the American forces knew that the hostilities were suspended. But it is a fact that the said hostile act was executed after this suspension.

And in this connection the Spanish Commissioners have to complete the short history recounted in the American memorandum, regarding the reestablishing of the Manila cable. It is stated therein that it was the Government of Washington which, on August 16, through a note to the Ambassador of France, requested the consent of the Spanish Government to the reestablishment of telegraphic communication between that place and Hong Kong. This is true, but so also is what is about to be related. The American Admiral had cut the said cable at the beginning of the campaign. After several fruitless efforts of the Spanish Director General of Posts and Telegraphs with the concessionary company looking to the reestablishment of its service, on July 9 last the said Director insisted on the reestablishment, agreeing on the part of Spain to the absolute neutrality of the service. The company brought this proposal to the notice of the Ambassador of the United States in London, in order also to obtain his consent. But the latter on the 16th of the same month replied that his Government preferred that it remain cut. It results from this that if there was no direct communication with Manila, via Hong Kong, on August 12, when the Protocol was signed, it was due to the Government of Washington, which one month before had opposed its reestablishment. This is another reason, were it necessary (which it is not) to prove that the ignorance of the American commanders, when attacking the place on August 13, of the suspension of hostilities, not only cannot serve as a reason for the United States to profit by the act of war then executed in violation of what their Government had agreed to the previous day, but furnishes a ground upon which to base a claim for the unjustified damage the said act inflicted upon the other belligerent party.

All the arguments set forth in the American memorandum as to the legal character it is there endeavored to give to the surrender and capitulation of Manila and to the acts since then executed in the city and even outside of it, by the commanders of the military forces of the Union, may be reduced to the following affirmations:

First. The legal character of the said capitulation is the same as that which would correspond to the peaceful surrender of the place, pursuant to the stipulations of Article III of the Protocol; and therefore the rights which the belligerent party has in the place he occupies as a guaranty are the same as he would have if he occupied it through an act of conquest in an act of war; and

Second. The occupation of Manila, its harbor and bay, stipulated in Article III of the Protocol, was a military occupation.

The Spanish Commission would never have believed that it would have to correct such grave errors, had it not seen them written in the American memorandum.

It is elementary on the subject that the occupation of a place or of a territory, agreed upon by belligerent parties that it may serve as a guaranty for the stipulations of a treaty, or the performance of an obligation resting on the party possessing the sovereignty over the place or territory occupied, has not and cannot have any title other than that in the convention in which it is stipulated. But the title to occupation by main force of a place or territory which surrenders through an act

of war, has a special name, which is capitulation. And to so denominate what was agreed on in the Protocol in order thereby to bring under its terms the illegal capitulation of Manila after the signing of that instrument, is an error into which no one up to this time has officially or scientifically fallen, and which neither the technical nor ordinary meaning of the word capitulation would admit. The peaceful occupation as a guaranty conveys no more right to the occupying party than of establishing the garrisons or maintaining the military forces he may deem necessary, in the place or territory, to retain it in his possession, until the performance of the principal obligation of which the occupa tion is the guaranty. It is natural that the provisioning of the army of occupation should be at the expense of the sovereign of the territory occupied. But although this provisioning is a natural condition, it is not essential to the convention. Therefore in the most prominent cases which have arisen of occupation of this kind the occupying party took good care expressly to stipulate the obligation to provision. Well known are the cases of occupation by way of guaranty of several departments of France which occurred in 1815 and in 1871, the former at the end of the wars of the Empire and the latter at the conclusion of the Franco-Prussian war. There it was expressly stipulated that the maintenance of the army of occupation should be at the expense of the French Government. This was not done in Article III of the Protocol of Washington.

All the other rights of sovereignty, sigually the collection of revenues and public taxes, continue in the peaceful possession of the sov ereign of the territory occupied. The party occupant must religiously respect such rights. The legitimacy of his acts does not extend beyond what may be necessary to meet the ends of the occupation.

From these elementary principles, which for the present case do not need to be enlarged upon, it results that the United States, pursuant to the stipulations of Article III of the Protocol, has no further right than to retain in its possession until the conclusion of the treaty of peace the city, harbor and bay of Manila as a guaranty of the engage ments of said Protocol, and, therefore, no more than the right to garrison the said city, bay and harbor with the necessary forces of its army and navy, but respecting the exercise of the sovereignty of Spain over the same in everything else compatible with this right to garrison, which is the proper designation of a guaranty occupation.

But the occupation of a city or territory through an act of war gives fuller rights to the belligerent who has taken forcible possession of one or the other. He does not acquire it is true, through conquest, the right of sovereignty over the conquered territory, but he does acquire the possession and temporary exercise of this sovereignty. While the occupation lasts the prerogatives of the sovereign, political, financial, and even executive, may be exercised by the occupant, but always with the moderation required by the respect due the rights of the pacific inhabitants, since nowadays war is not waged between the peoples but between the armed forces of the belligerent states.

What goes before suffices to bring out the capital difference which precludes anyone from confounding the peaceful guaranty occupation with the belligerent occupation or conquest. On what ground does the United States persist after the 14th of August in occupying the city, harbor and bay of Manila? On the ground of belligerent occupation, having taken the city by force after the Protocol was signed. On what ground has the United States the exclusive right to occupy that city, T P−13

bay and harbor? On the ground of a peaceful guaranty occupation, and nothing more than this, pursuant to the stipulations of Article III of the said compact. How, then, can it be asserted that the character of such occupation is immaterial in this case?

It is needless to lay further stress upon one of the most elementary points in the matter of the international law of war.

The second error that is displayed in the American memorandum consists in supposing that the occupation agreed to in the Protocol was a military one. Those who understand this expression in the sense of occupation with military forces there can have no doubt whatever in applying the same denomination to these two kinds of occupation, although they are so different. But for those who, using the technical term sanctioned by science and by the treaties, call military occupation only that which is belligerent, or effected by force, the occupation agreed to in the Protocol cannot be termed a military one.

It is therefore useless to endeavor to bring under a common denomination acts which are essentially different and whose lawful consequences have never been confounded. The occupation of the city, bay and harbor of Manila granted to the United States by the Washington agreement, is not a military or belligerent occupation, from which can lawfully be derived the rights and faculties which are inherent therein.

It cannot be doubted that the commanders of the American forces in the Philippines fell into the same error as the memorandum. One can understand that once in possession of the place and while they had no notice of the suspension of hostilities they should have commenced to exercise all the rights and privileges of a military or belligerent occupant. But the American memorandum admits that on the 16th of August these commanders were advised of the stipulated suspension of hostilities. Notwithstanding this, they continued to exercise these rights and privileges, which they did not possess, and which they ought to have known they did not possess. On that date the machinery of Spanish administration was still in operation. It was on the 16th of August that the American forces began to take possession manu militari of that machinery, of the public moneys, revenues and imposts, and also to hold as prisoners the Spanish troops that had surrendered on the 14th.

We believe it unnecessary to insist any longer upon the refutation of errors of such gravity and importance, for which a single explanation can be found only in the sad and dire necessity of using them as the only means of defence on a point which is battered from all quarters.

And as we have been unable to come across any argument in the American memorandum more substantial than those referred to, among those that were advanced against the Spanish proposal, this Commission considers it its duty to support it and set forth that it cannot concur in the conclusion with which the memorandum closes.

The Spanish Commission might here put an end to this paper, were it not for the earnest desire with which it is animated of seeking on its part some means of removing the obstacles which are now standing in the way of the work of peace entrusted to these conferences, and of facilitating to both Commissions the fulfilment of a charge which cannot but be in perfect harmony with the sentiments of humanity and patriotism which surely inspire them both in the same degree.

Whether the interpretation of Articles III and VI of the Protocol as given by the American Commission, or as insisted upon by the Spanish Commission, is accepted, the fact remains unfortunately that a situation

is created which can be settled only by the good faith of both parties. Be it because the conference of Paris has no powers to consider the question concerning the sovereignty over the Philippine Archipelago, in the manner and form proposed by the American Commission; be it because, even though it had such powers, it also would have to enjoy the natural and legitimate freedom of exercising them in the sense dictated by their conscience to the members thereof,-the real fact is that as the opinion of the Joint Commission is equally divided on the subject, the solution of the difficulty becomes impossible.

The American Commission will surely not contend that in the event of conflict, or tieing of its vote with that of the Spanish Commission, theirs should prevail and be given the character of a decision of the Joint Commission.

And inasmuch as the United States do not claim anything more than a recognition of the right which, according to them, they have under the Protocol to ask the sovereignty over the archipelago, but do not go to the extreme of saying that they also have the right to demand of the conference that their petition be acceded to, and force the same upor it as if it were an order, the impossibility of the petition of the American Government being complied with, and consequently of the sovereignty over the archipelago being secured by it through the only lawful title which it professes and acknowledges as the only mode of transfer, becomes manifest.

What are the consequences of so harassing and unyielding a situation? The rupture of negotiations? The consequent renewal of hostilities?

Is there anyone who will not halt in the presence of such terrible consequences? Is there anyone who will entertain the idea that it is not better before submitting to them to resort to some other means that good faith cannot fail to suggest to the Contracting Parties?

And what is that means?

Both Commissions might very well agree to leave the question relating to the sovereignty over the Philippine Islands out of their own negotiations and reserve it for direct negotiations to be opened between the two Governments, and continue in the meanwhile their discussion of all the other points to be embodied in the treaty of peace. This method, which at first sight appears so simple, is nevertheless fraught with serious dangers, and signally those which might exist now were the negotiations broken off, with the only advantage of putting the dangers off for a short while. Should the two High Parties fail to agree, the situation would be the same as that which now confronts the Paris conference.

In the opinion of the Spanish Commission, there is another means more simple still and surer, which consists in an agreement by the two Commissions to propose to their Governments that an arbitrator or an arbitration tribunal, constituted in the manner by them agreed upon, shall determine the true sense in which Articles III and VI of the Protocol of Washington should be taken.

The difference of opinion between the two Commissions lies principally in the different sense each gives to those articles.

This appears from their respective memoranda.

Now, it seems that if ever in international conflicts there is, or may be, anything which men of good will should endeavor to settle by the force of justice, or even by the dictates of equity, instead of force of arms, it is that which consists in a difference of interpretation of an article of any treaty previously agreed upon, arising out of the attempt to put it into execution.