been "made by the Cortes," each of the treasuries should "make pay. ment of the part assigned to it," and, finally, that "engagements contracted with creditors under the pledge of the good faith of the Spanish nation shall in all cases be scrupulously respected."

In these declarations the American Commissioners find, as they stated in the argument above referred to, "a clear assertion not only of the power of the Government of Spain to deal with the so-called Cuban debt as a national debt, but also a clear admission that the pledge of the revenues of Cuba was wholly within the control of that Government, and could be modified or withdrawn by it at will without affecting the obligation of the debt," and, so long as the stipulated payments upon the debt were made, without violating the engagements of Spain with her creditors.

No more in the opinion of the Spanish Government, therefore, than in point of law, can it be maintained that that Government's promise to devote to the payment of a certain part of the national debt revennes yet to be raised by taxation in Cuba, constituted in any legal sense a mortgage. The so-called pledge of those revenues constituted, in fact and in law, a pledge of the good faith and ability of Spain to pay to a certain class of her creditors a certain part of her future revenues. They obtained no other security, beyond the guarantee of the "Spanish Nation," which was in reality the only thing that gave substance or value to the pledge, or to which they could resort for its performance.

One more remark, and the American Commissioners have done with the renewed discussion into which they regret to have been obliged to enter on the subject of the so-called Cuban debt. The Spanish Commissioners are correct in saying that the Government of the United States repeatedly urged Spain to reestablish peace in Cuba, and did not exclude the use of arms for that purpose; but the impression conveyed by this partial statement of facts is altogether erroneous, as is also the implied representation that Spain's course in the matter may be considered as a compliance with the demands of the United States. The Government of the United States did indeed repeatedly demand that order be reestablished in Cuba; but through long years of patient waiting it also tried and exhausted all the efforts of diplomacy to induce Spain to end the war by granting to the island either independence or a substantial measure of self-government. As early as the spring of 1869, not long after the deepening gloom of the ten years' war began to settle upon the island, the United States offered its mediation and its credit for the reestablishment of peace between Spain and her colony. Spain then as afterwards preferred war to the relinquishment of her rule, and the United States did not assume to discuss the legitimacy of the expenses incurred in the pursuit of that policy. But the question of Spain's right to incur those expenses, and that of her right or her power to fasten them as a perpetual burden upon the revenues of Cuba, after those revenues have passed beyond her control, are questions between which the American Commissioners feel neither difficulty nor hesitation in declaring and maintaining a fundamental difference both in law and in morals.

The American Commissioners, before passing to the principal subject before the conference, will briefly notice that part of the Spanish memorandum which treats of the occupation of Manila by the American forces.

With the elaborate references to the apparent implication in a previous paper that General Merritt and Admiral Dewey might have

knowingly violated the armistice in their capture of Manila a few hours after its signature, and with the new remarks about Admiral Dewey's draconian order, the spontaneousness of his kind feelings, and other and similar phrases, we do not occupy ourselves; nor with the objections to our use of the word "fled " in describing the escape of the Spanish General before the surrender. We are entirely content on these points with the record. For the same reason we pass without comment the remark concerning the claim for indemnity "on similar grounds" in the Philippines that "on first sight this argument is not wanting in force; but the American Commissioners know perfectly well that this is only apparent, and that what did occur proves absolutely the contrary." We interpret this apparent charge of intentional deceit in the light of the valued assurance given in another part of the same paper by the Spanish Commissioners when they, themselves, admit that "no language or even a phrase improper to a diplomatic discussion has been used by them" and "they avoid with the greatest care the use of any phrase which might be personally unpleasant."

With regard to what is stated in the Spanish memorandum as to the occupation of territory as a guaranty in time of peace, and the limitations that are usually affixed to such occupation, the American Commissioners have only to advert to the fact that, as has often been observed by the Spanish Government in its communications, the state of war between the United States and Spain is not yet ended. In its original demands, just as in the Protocol of August 12, the United States declared that it would "occupy and hold the city, bay and harbor of Manila, pending the conclusion of a treaty of peace." These words imported a military occupation, with all its usual incidents, political and administrative, during the continuance of the state of war. The distinction between the occupation of territory as a guaranty in time of peace, and the military occupation of the enemy's territory in time of war, is well illustrated in the case of France and Germany in 1871, which the Spanish memorandum, unfortunately for its purpose, cites in support of its contention as to the nature of the American occupation of Manila under the Protocol. By a convention concluded on January 28, 1871, France and Germany agreed to a general armistice, which took effect immediately in Paris and three days later in the departments. Under this convention the belligerent armies were to preserve their respective positions, which were separated by a definite line of demarcation, and, simply in recognition of the nature of the occupation, each of the armies reserved the right "to maintain its authority in the territory that it occupies, and to employ such means as may be considered necessary for the purpose by its commanders." By a subsequent convention of February 15, 1871, the fortified town of Belfort, which was besieged by the Germans, but had not been taken when the armistice was made, was brought within the German lines of occupation. On February 26, 1871, the belligerent powers concluded a preliminary treaty of peace. By this treaty, which, unlike the convention for an armistice, required the formal ratification of the two governments, the sovereignty of France over Alsace-Lorraine was renounced, and provision made for the payment to Germany besides of a war indemnity. By an additional convention signed on the same day it was agreed that the German troops should "refrain for the future from raising contributions in money in the occupied territories," but, on the other hand, it was declared that the German authorities should "continue to collect the state taxes" therein. And it was provided by the preliminary treaty that not until the conclusion and ratification of the

definitive treaty of peace should "the administration of the departments" remaining "in German occupation" be "restored to the French anthorities".

"The United States will occupy and hold," so reads the Protocol, "the city, bay and harbor of Manila, pending the conclusion of a treaty of peace". These brief words obviously and necessarily imported the military occupation, in time of war, though not of active hostilities, of a designated territory, with the usual incidents of such occupation, and not an occupation as a guarantee in time of peace. From the incidents of one kind of occupation nothing is to be inferred as to the incidents of the other, for the simple reason that the two things are different in their nature. The occupation by a belligerent army of a hostile territory is conceded to involve the exercise of a paramount power of control which would be utterly inconsistent with the rights of the titular sovereign over his territory and its inhabitants in time of peace.

The American Commissioners have examined with special care that part of the Spanish memorandum which deals with the "control, disposition and government of the Philippines", and to the consideration of that subject they will now address themselves.

The American Commissioners are obliged at the outset to call attention to the fact that the present argument of the Spanish Commissioners contains the same defects as the previous one, in being directed against a position which the American Commissioners not only have never assumed, but which they expressly repudiate. The American Commissioners now repeat that their proposal for the cession of the Philippines is neither based nor alleged to be based upon a specific concession of Spanish sovereignty in the Protocol, but upon the right secured to the United States by that instrument to make in the negotiations for peace such demands on the subject as it should then deem appropriate under the circumstances. The only obligation therefore now resting upon the American Commissioners is to show not that their proposals in regard to the Philippines are founded on the Protocol, in the same sense as their demands in the case of Cuba, Porto Rico, and Guam, but that those proposals are embraced within the right thereby expressly secured to the United States to make demands in the future. In the light of this plain and simple proposition, which is sustained not only by the Protocol itself, but by every document referred to or quoted in the present discussion, how idle and unavailing is the characterization of the present demands of the United States as "tardy", as well as the insinuation that that Government in postponing, with the express concurrence of Spain, the formulation of its demands, was guilty of a want of "frankness"!

The American Commissioners are gratified to find in the passages quoted in the Spanish memorandum from Mr. Cambon's reports of his conferences with the President, the amplest confirmation of their position. Those reports, as quoted by the Spanish Commissioners, show that the Spanish Government, far from asking, in any proper sense of the word, "explanations" of the phrase "control, disposition and government", fully understood its meaning, and sought but failed to obtain a limitation of it. Indeed, there is not to be found from first to last a suggestion that if the words "control, disposition and government" were allowed to stand they did not embrace the amplest right to deal with Spanish sovereignty in the islands.

In this relation it is the duty of the American Commissioners to notice the fact that the Spanish memorandum, in comparing the reports of

Mr. Cambon with those quoted by the American Commissioners, intimates that the former are entitled to preference because they were contemporaneous. But the record quoted by the American Commissioners was also contemporaneous, and was made by the Secretary of State under the supervision of the President himself. With this observation, the American Commissioners will pursue their argument.

In his report of the conversation of the 30th of July, Mr. Cambon is quoted as stating that "the President of the Republic was firm in not changing the terms of Article III", but that, as the result of an appeal to his generosity, he consented to substitute the word "disposition" for "possession."

The American Commissioners have already stated that the President refused to change the word "possession" except for a word of equally extensive meaning, and that the reason for which Mr. Cambon was understood to desire the change was that the word "possession" would, when translated into Spanish, seem to be of a severe and threatening nature. The meaning of Mr. Cambon, as defined in his report to the Spanish Government, was that the word "disposition" did not "prejudge" the result of the negotiations, and that it had not so "comprehensive" a meaning as the word "possession."

The American Commissioners are unable to concur in Mr. Cambon's estimate of the relative comprehensiveness of these two English words; but they are obliged to point out, as a matter more material to the present discussion, that he does not, as the Spanish Commissioners affirm, allege that he "accepted the change because he understood that all question about the sovereignty of Spain over the Philippine Islands was thereby eliminated". On the contrary, his only claim is that the word "disposition" did not "prejudge" the "result" of the "negotiation". His understanding therefore appears to have been precisely the opposite of that ascribed to him in the Spanish memorandum.

That this is the case is confirmed beyond all peradventure by the unsuccessful efforts subsequently made by Mr. Cambon, under instructions of the Government at Madrid, to obtain a limitation of the American demand, as it then and has ever since stood, that the treaty of peace should determine "the control, disposition and government of the Philippines".

The telegram of the Spanish Government to Mr. Cambon, in relation to this demand, has now for the first time been disclosed to representatives of the Government of the United States. What other instructions Mr. Cambon may then have had in his possession, it is not material to conjecture. But, according to his own report, as quoted in the Spanish memorandum, he requested the President, in the interview of the 3rd of August, "to have the kindness to state as precisely as pos sible his intentions in regard to the Philippine Islands. On this point," continues Mr. Cambon, "I told him the answer of the Federal Government is couched in terms that may lend themselves to all claims on the part of the United States, and consequently to all apprehensions of Spain in regard to her sovereignty."

Here is a clear declaration of Mr. Cambon that the phrase "control, disposition and government", admitted of "all claims" on the part of the United States", and that it created apprehensions on the part of Spain in regard to her "sovereignty"; and he asked, not for an "explanation" of the phrase, but for a statement by the President, as "precisely as possible", of his "intentions". In other words, Mr. Cambon, acting under the instructions of the Spanish Government, endeavored to obtain at that time a statement of the demands which

the United States would make in regard to the sovereignty of Spain, and thereby at least an implied limitation of the rights in that regard. The reply of the President, as reported by Mr. Cambon, shows that he was firm in his determination both to retain the precise words of the demand and the full liberty of action which they secured. On this subject the President, as reported by Mr. Cambon, declared that he did not want "any misunderstanding to remain"; nothing was decided as against either Government; the negotiators of the treaty of peace must determine the matter.

This is from first to last the sum and substance of Mr. Cambon's reports, as quoted in the Spanish memorandum. The recurrence in that memorandum to Mr. Cainbon's apparently casual use of the words "permanent advantages", as an evidence that sovereignty was not in question, when he himself declares that the words "control, disposition and government" lent themselves to "all claims" and therefore raised apprehension as to Spain's "sovereignty", discloses the infirmity of the contention in which the argument is employed. Indeed, the words "permanent advantages" are not in the context of Mr. Cambon invested with the importance which the Spanish memorandum now ascribes to them. As the American Commissioners pointed out on a previous occasion, it is not pretended that Mr. Cambon attempted to report the original words of the President, who spoke in English; and, immediately after attributing to the President words which he translates by the terms "permanent advantages", Mr. Cambon narrates the Presi dent's undoubted declaration that the "control, disposition and government" of the Philippines must be determined in the treaty of peace, in advance of which the case was not to be considered as decided against either Government.

In his report of the interview of the 9th of August, Mr. Cambon, as quoted in the Spanish memorandum, states that, when the note of the Spanish Government of the 7th of that month, in reply to the American demands, was read, the President and the Secretary of State were visibly displeased, and that, after a long silence, the President objected to that part of the reply which related to the evacuation of Cuba and Porto Rico. The Spanish memorandum declares that neither the President nor the Secretary of State advanced any other reason than this for their displeasure, and that, "according to Mr. Cambon, these gentlemen said nothing during the conversation respecting the said reservation made by Spain of her sovereignty over the archipelago". As no direct assertion to this effect by Mr. Cambon is quoted, the American Commissioners are obliged to assume that he made none, and that the statement in the Spanish memorandum is a mere inference from an omission to report what was said on the subject of the Philippines. This omission may be accounted for by the fact that Mr. Cambon, although he had previously declared that the American demand admitted of "all claims" on the part of the United States, expressed and maintained the opinion that the Spanish reply fully accepted it, and therefore left nothing in that regard to be conceded, while in respect of the demand for the evacuation of Cuba and Porto Rico, which was to be immediate, the reservation by Spain of the approval of the Cortes, which was not then in session, presented an obstacle to an agreement. This objection he deemed it necessary to report, since it required, in his own opinion, a modification of Spain's reply to the American demands. But whatever may have been the cause of the omission, it is a fact that no small part of the "visible displeasure" of the President and the Secretary of State arose from the apparent design, upon which comment was duly