Nr. 11976. the parallel of 4° 45' North latitude, thence along the parallel of 4° 45' Vereinigte North latitude to its intersection with the meridian of longitude 119° 35' East und Spanien. of Greenwich, thence along the meridian of longitude 119° 35' East of Green

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wich to the parallel of latitude 7° 40' North, thence along the parallel of latitude of 7° 40' North to its intersection with the 116th degree meridian of longitude East of Greenwich, thence by a direct line to the intersection of the 10th degree parallel of North latitude with the 118th degree meridian of longitude East of Greenwich, and thence along the 118th degree meridian of longitude East of Greenwich to the parallel of latitude 21° 30' North.' A proper reference to the cession thus proposed may be inserted in the article of the treaty relating to public property, archives and records in territory which Spain cedes or over which she relinquishes her sovereignty. || The American Commissioners beg further to state that they are prepared to insert in the treaty a stipulation for the assumption by the United States of any existing indebtedness of Spain incurred for public works and improvements of a pacific character in the Philippines." || The Spanish Commissioners asked for an adjournment in order that they might examine the proposal, and either accept it or present a counter-proposal, and suggested that the Commission should meet again on Friday, the 4th of November, at two o'clock, p. m., without prejudice to asking for a postponement, if it should be necessary. This suggestion was accepted, and the conference was accordingly adjourned.

Nr. 11977. VEREINIGTE STAATEN und SPANIEN.

Antwort der Spanier auf das Vorige.

12. Sitzung.

4. November 1898.

The President of the Spanish Commission stated that, having carefully Vereinigte examined the proposal of the American Commissioners in relation to the Phiund Spanien. lippines, he presented a counter-proposal on that subject, which counterproposal he delivered to the Secretary of the Spanish Commission, who handed it to the Secretary of the American Commission. || The American Commissioners desiring to have the counter-proposal translated to them immediately, it was read in English by their Interpreter; and it is annexed to the protocol. || The President of the American Commission then stated that as they understood from the reading of the paper that their proposal was rejected, they had under the rules a right to file a memorandum in writing in support thereof, and that, under the circumstances, and in order that the paper presented by the Spanish Commissioners might be carefully translated aud considered, the American Commissioners desired an adjournment till Tuesday, the 8th of November, at two o'clock, p. m. || The Spanish Commissioners agreed to the adjournment, but stated that, as their paper, besides rejecting the American proposal, also put forward a counter-proposal, they understood that they would have the right to submit a memorandum in writing in support of such counter-proposal, if the American Commissioners should reject it. || The Com- Nr. 11977. missioners concurring in opinion upon these matters, the conference was ad- Vereinigte journed to the day previously fixed.

Anlage.

Gegenvorschlag der Spanier.

The Spanish Commission has read with great surprise the proposition presented by the American Commission at the meeting held on the 31st of October, ultimo. || The only article which said proposition contains is reduced to providing for the cession by Spain to the United States of the archipelago known as the Philippine Islands, situated within the perimeter geographically determined in its text. || But in addition thereto the proposition contains two paragraphs, not intended to form a part of the article, the second of which is of such importance as to demand from the Spanish Commission to deal with it specially in this paper. || The Spanish Commissioners have stated that the American proposition excited in them great surprise, and it is their duty to set forth the reasons which explain that feeling. || From the first to the last conference, the American Commissioners have been alleging constantly and that allegation was the principal ground upon which their drafts relating to Cuba and Porto Rico were based that in their conferences the two Commissions have to abide by the bases established in the preliminaries of peace agreed upon and signed on the 12th of August ultimo. The same was said and continues to be said by the Spanish Commissioners. One difference, however, has existed in this respect between the two Commissions, and this has been that the American Commissioners understand that the Protocol should be construed according to its letter, strictly, and without taking into consideration any data, antecedent or document. For this reason, as the words "Debt of Cuba, or of Porto Rico" were not written on the Protocol, they have deemed that Spain should transmit or cede her sovereignty over the islands, but should retain the latter's obligations. The Spanish Commissioners understand, on the contrary, that for determining the literal meaning of the Protocol it is necessary not only to bear in mind the general rules of international law as to the interpretation of treaties, but also the negotiations carried on between the two parties which culminated in this agreement, and in which the interpretation of the latter had been given beforehand and officially. || Therefore the proposition relating to the cession by Spain to the United States of the Philippine Islands, besides not being included in or covered by the articles of the Protocol, appears to be in open contradiction of its terms. In the opinion of the Spanish Commission it is a flagrant violation of the agreement. || The Protocol contains six articles, and only one, the third, refers to the Philippine Archipelago. Literally translated (into Spanish) from the official French text, it reads as follows: || "The United States

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Nr. 11977. shall occupy and hold the city, the bay and the harbor of Manila pending Vereinigte the conclusion of a treaty of peace which shall determine the inspection und Spanien. (contrôle), the disposition, and the government of the Philippine Islands." ||

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This is all that the Protocol says about the archipelago. || Even accepting as a proper standard for the interpretation of this article the narrow one of the literal meaning, as claimed (no matter how strange it may appear) by the American Commission, the Spanish Commission would have only to reply that the text of the Protocol refers to nothing else than the temporary or provisional occupation by the United States of Manila, its harbor, and its bay, until the treaty of peace, determining or agreeing upon the inspection, disposition and government of the Philippine Islands, should be concluded. || What has this to do with any change or cession of sovereignty?

The first part of the articles is perfectly clear. Not even the slightest doubt can exist as to the fact that the only agreement as to Manila, its bay and its harbor, referred to the occupation thereof, not final but provisional, by the United States; said occupation to last only until the conclusion of the treaty of peace. No proof is necessary to corroborate this literal construction of the text. But should it be required, the American Commission would find it in document number 19 in the Yellow Book just published by the Government of the French Republic. Said document contains the circular addressed by the French Minister of Foreign Affairs to the French Ambassadors in Europe, three days after the signing of the Protocol, acquainting them with the mission which the Government of the Republic had allowed to be entrusted to the French Ambassador at Washington, to offer peace to the Government of the United States in behalf of the Government of Her Catholic Majesty. This circular states that the French Ambassador at Washington had signed, in the name of Spain and at her request, a Protocol setting forth the demands of the United States, and after enumerating those demands, and in referring to the Philippine Islands, the French Minister of Foreign Affairs says that the only one contained in that document was the provisional occupation of Manila by the American forces. || The American Commission will not disregard the unquestionable moral weight of the testimony of the Minister of Foreign Affairs of the French Republic, equally friendly to the two belligerent states, who could know nothing about the Protocol except through the most authoritative channel of the French Ambassador who had discussed it with the American Government, and agreed to it and signed it, in the name of Spain. || The mere provisional character of that occupation remained even after the Protocol was signed, when General Merritt, contrary to what had been agreed upon in Article VI of the same, forcibly took possession of Manila. In the last paragraph of number 5 in the rules for capitulation agreed upon and signed on August 15, on the part of the United States by Brigadier General of Volunteers E. V. Greene, by Captain Lamberton of the United States Navy, by Lieutenant-Colonel and Inspector-General Whittier, and by

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Lieutenant-Colonel Judge-Advocate Crowder, the following was said: || "The Nr. 11977. return of the arms surrendered by the Spanish forces shall take place when Vereinigte they evacuate the city or when the American army evacuates." || Therefore it und Spanien. was understood by those who signed this agreement that the American forces 4. Nov. 1898. did not permanently occupy the place, as they anticipated the case that they would have to evacuate it. And if they anticipated this, it is clear that they understood their occupation of the place to be merely provisional. || True it is that the words "inspection, disposition and government of the Philippine Islands" have not a clear meaning. The Spanish Government and its representative at Washington had noticed this fact and asked for the proper explanation thereof (which was not given) by the American Government, before the Protocol was signed. But whatever construction may now be placed upon these words, the fact is that in no case can their meaning be so stretched as to involve in any way the idea of cession of the sovereignty of Spain over the archipelago. Such a cession or acquisition in perpetuum of the archipelago by the United States, had it been agreed upon in the Protocol, would have been in contradiction with the mere temporary occupation of Manila, which at the same time was agreed upon in the same clause of that instrument. || Nor could the said construction ever be admitted as valid, under the rules of interpretation of treaties, because the said admission would result in benefiting a party who refused to explain, when asked at the proper time to do so, the meaning of the words which even then were considered ambiguous and indeterminate. Even if this were not the case, the rule which the Spanish Commission understand to have been applied to them without reason, set forth by the American Commissioners in their last "memorandum", namely, that "the abstention of Spain from proposing in the Protocol the condition of the transfer of the debt precluded her from proposing it now", would be applicable to the case. The United States abstained from proposing to Spain in the Protocol, frankly and openly, as frankly and openly as all things must be set forth in all treaties, which must never be concluded unless to be understood and complied with in good faith, the cession of her sovereignty over the archipelago. They did not do it, and they became thereby precluded from proposing it now. || All the foregoing statements must really be considered in excess of necessity, as it is a fact, perfectly well known to the American Commissioners, that when the Protocol was signed at Washington the most worthy President of the Union not only had no idea that Spain would have to cede the Philippine Archipelago to the United States, but entertained, on the contrary, an opposite idea, namely, that Spain would retain her sovereignty over it.

In the conference held on August 4 last, between Mr. Cambon, Ambassador from France, and President McKinley, in the presence of the United States Secretary of State, Mr. Cambon made some remarks as to the cession of Porto Rico in compensation for the expenses of the war, and the President,

Nr. 11977. showing himself inflexible upon that point, repeated his assertion that the Vereinigte Philippine question was the only one not finally settled in his mind. It was und Spanien. then that Mr. Cambon asked for an explanation about the meaning of the

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above cited phrases in Article III of the Protocol, relating to the Philippine Archipelago, as the language of said article might lend itself to inspire fear in Spain in regard to her sovereignty over these islands. President McKinley answered him, verbatim, as follows: || "I do not want any ambiguity to be allowed to remain on this point. The negotiators of both countries are the ones who shall resolve upon the permanent advantages (notice that he said ,,advantages" and not "rights") which we shall ask in the archipelago, and decide upon the intervention (contrôle), disposition and government of the Philippine Islands." || He further said: "The Madrid Government can rest assured that up to now nothing is decided a priori, in my own mind, against Spain, nor do I consider anything decided by it against the United States." | Is it therefore doubtful that on the 12th of August, when the Secretary of State of the United States signed the Protocol, the President of the United States had no idea of demanding from Spain the cession to the United States of her sovereignty over the archipelago? || But there is something more. The President of the United States, far from entertaining that purpose, clearly showed by his language that he desired that Spain should preserve her sovereignty. He said that the Commissioners at Paris would have to come to an agreement as to the permanent advantages to be demanded by the United States in the Philippine Archipelago. If Spain was to be deprived of her sovereignty, what future advantages could possibly be asked from Spain by the United States Commissioners, or granted them by Spain? How would it be possible for the American Commissioners at Paris to ask Spain for advantages in an archipelago which they at the same time had to demand and receive as their own property? || There is still another proof, as irrefutable as the above, that the Washington Government, far from having at that time any idea or intention to acquire sovereignty over the Philippine Archipelago, consented that said sovereignty continue to be vested in Spain, by removing from its own mind all idea of change in this respect, either when framing or signing Article III of the Protocol. || When the Spanish Government, by its despatch of the 7th of August, answered the note of the Honorable Secretary of State of the United States of the 31st of July, wherein he informed Spain of the conditions, such as set forth in the Protocol, upon which the American Government was disposed to put an end to the war, the Spanish Secretary of State used in regard to basis 3 the following language: || "The basis relating to the Philippine Islands seems, according to our understanding, to be too indeterminate. In the first place, the title invoked by the United States for the occupation of the bay, harbor and city of Manila, pending the conclusion of a treaty of peace, cannot be conquest, as the city of Manila is still defending itself. In spite of the blockade by sea and the siege by land, the