Mr. Moore to Mr. Hay.
Spanish Commissioners yesterday presented long paper in which they reply to our last memorandum. Discuss provisions of protocol relating to Philippine Islands and support by argument their recent proposals thereon. They declare that our memorandum abounds in grave errors of fact and strange doctrines of law, and deny that they have withdrawn their provisional acceptance of our articles on Cuba, Puerto Rico, and Guam; that acceptance, however, was conditional upon agreement on whole treaty and was given for compensation which might be obtained in other articles for sacrifices of Spain as to debts, but only subsequent development in negotiations is the demand for cession of the Philippine Islands. Spanish Commissioners would therefore have been justified in insisting on claims as to transmission of colonial obligations and debts, but have confined themselves to contradicting affirmations to which they could not assent. They quote royal decrees and the text of bonds to disprove that greatest part of the Cuban debt was contracted in the effort to conquer Cuban insurgents and then to [Page 952] oppose the United States, as well as to show that colonial revenues were primary security for debt. They maintain legal right of Spain so to contract the debt and the legal validity of the debt so contracted, and cite our demands that Spain suppress rebellion and maintain order in Cuba as a proof of our recognition of her sovereignty in the premises and the legitimacy of its exercise for that purpose; but in concluding this part of the paper they say the duty of defending the bondholders does not belong to Spain; that it is sufficient for her to defend the legitimacy of her action, her perfect right to create the debt and the mortgage by which it was secured, and her strict right not to pay interest or principal except upon proof of insufficiency of mortgaged revenues. The responsibility of failing properly to apply revenues will rest on those who control them, and not upon Spain, who has not the means to compel the performance of the duty. Spain neither will nor can do anything to impair the rights of bondholders, who can without great effort demonstrate [the] justice of their cause.
Spanish Commissioners then discuss Article III of the protocol and contend that it should be read in light of prior negotiations. They quote telegram of August 1 to Cambon saying that three [sic—our?] demand seemed to lack precision; that Spanish Government supposed there was no question in regard to Spain’s permanent sovereignty over archipelago and that occupation of Manila, its harbor and bay by the United States would last only during the time necessary for two countries to agree on administrative reform. They then refer to Cambon’s interview with the President of August 3 and to dispatch of Spanish minister for foreign affairs of August 7 and say that never till now has the United States consented to give concrete form to the idea involved in the phrase “control, disposition, and government” of the Philippine Islands. If the United States meant that joint commission should determine the sovereignty of the group by agreeing or disagreeing to its cession to the United States, why did it not say so? American Commissioners say that word “control” must be construed in the sense of authority or command, because that is its broadest meaning in English, but fail to notice that the protocol was also written and signed in French and that the French word “contrô1e” means only investigation or inspection. The word “disposition,” while it conveys the idea of alienation in private law, usually means in French distribution according to a certain and determined order. The word “government” may mean the right of administering or exercising sovereignty, but may also signify manner of governing or form which may be given to government. The words, therefore, do not possess a clear and precise meaning incapable of doubt or ambiguity, and yet it was the United States, not Spain, that insisted upon retaining them and refused to explain them. Vattel, Volume III, page 197, declares that doubts must be resolved against him who gives the law in the treaty, since it is his fault not to have expressed himself with more clearness. The party who dictates conditions should not be allowed to convert vague or ambiguous terms into bonds to tie up the more feeble contracting party. In the American note of July 30, it was said that if the terms offered by the United States were accepted in their entirety, commissioners would be appointed to settle the details of treaty of peace, etc. Could unexpressed demand for cession of immense territory, with a population of 9,000,000 inhabitants, have been considered as a detail of a treaty? Spanish Commissioners here review at some length interviews of Cambon with the President, and compare versions [Page 953] thereof, and contend that by the note of Spanish minister for foreign affairs of August 7 Government reserved a priori its sovereignty over Philippine Islands, and that Article III of the protocol can in law bind it only with this reservation, which was never withdrawn. They say that the only objection made in our note of August 10 to Spanish note of August 7 was that the latter was not entirely explicit, owing to various transformations which it had undergone. This they maintain could not have referred to paragraph on Philippine Islands, since it explicitly reserved a priori Spanish sovereignty over the islands. The Paris conference is, therefore, authorized to determine only their internal régime.
Spanish Commissioners then proceed to support their last proposals as to what should be done regarding Philippine Islands in the treaty of peace. They disclaim intention to assert that General Merritt and Admiral Dewey had knowledge of protocol when they took Manila on August 13, but refer to the Admiral’s message to the governor of Manila of May 1 threatening to destroy city if all vessels, torpedo boats, and warships under the Spanish flag were not immediately surrendered, and say they presume this message will have no place in the chapter of history in which are recorded the services rendered to the cause of humanity of which there is so much ostentation in these days. They also refer to the circumstances in connection with delay in taking Manila; that the number of insurgents about the city increased because of postponement of it, and complains of statement in American memorandum that the captain-general fled before the surrender. They maintain that our occupation of Manila pending the conclusion of the treaty of peace was intended and agreed upon merely by way of a guarantee, and that protocol makes no connection between future occupation of the place and the payment of a war indemnity. They observe that the American Commissioners do not in their memorandum argue that suspension of hostilities did not go into effect immediately, but that they endeavor to invalidate the Spanish claim as dilatoiy. They state that this claim was made twenty-three days after capitulation, and inquire what law or practice forfeits such claim unless presented before the twenty-three days reckoned from the act giving rise to it. Even if the claim had not been then presented, the Spanish Commissioners might present it now, since they are empowered to ask for a faithful execution of the protocol. They quote from Wharton’s International Law Digest that compacts between enemies should be specially adhered to, as of immediate interest and duty not only to the parties but to all mankind. They combat the argument that occupation of Manila under the protocol is same as or equivalent to a military occupation by conquest. They contend that [occupation] by force of a territory which surrenders through an act of war has a special name which is “capitulation,” and that to call by this name the occupation under the protocol in order to bring it within the terms of the illegal capitulation of Manila after the protocol was signed, is an error never heretofore officially or scientifically made. They contend that occupation as a guarantee conveys no greater right than to maintain a military force in that territory till the performance of the principal obligation, and that the occupying party has therefore usually taken care even to stipulate for the taking of provisions for his forces. The occupation under [the] protocol can not be considered as a military one, since it was not effected by force nor as the result of a belligerent oper-tion. Moreover, it was after August 16 when the American commanders [Page 954] heard of the protocol that they began to take possession by military force of the machinery of government, of the public moneys, revenues, and imposts.
Spanish Commissioners say they might here bring the paper to a close, did they not desire to find some way in harmony with sentiments of humanity and patriotism of both Commissions to remove obstacles to peace; this can be done only through the bona fides of both parties; the Commissions are equally divided; the United States does not go further than to claim that under the protocol it has right to ask for the sovereignty over Philippine Islands. It does not claim the right to order the cession to be made. Shall the negotiations then be broken off and hostilities renewed? Can not the good faith of the parties suggest some means of averting these terrible consequences? The Commissioners might agree to leave the question of sovereignty over Philippine Islands for direct negotiations between the two Governments, and continue meanwhile the discussion of all other points to be embodied in the treaty. This method is, however, attended with the danger of the Governments failing to agree. The Spanish Commissioners think it more sensible and more sure for the two Commissions to agree to propose to their Governments an arbitrator or a tribunal of arbitration to determine the true sense in which Articles III and VI of the protocol should be taken. If there is any controversy between nations which men of good will should endeavor to settle by justice and equity, it is that of a difference as to the interpretation of a treaty. Sovereigns may refuse to submit to judgment of a third party that which affects their honor or even their amour propre, but in the modern and Christian world it is inconceivable they should prefer covering earth with corpses and deluging it with human blood to submitting their own opinions on a matter so exposed to fallibility as the sense which a party to a treaty may desire to give it. The United States, say the Spanish Commissioners, have to their glory taken among civilized peoples the initiative in appealing to the humane, rational, and Christian method of arbitration, rather than inflict bloody war. The senate of Massachusetts in 1835 approved the proposal for creation of an international court to settle all differences between countries. In 1851 Committee on Foreign Relations recommended insertion of arbitration clause in treaties, and the Senate approved a report in 1853. In 1873 the Senate again, and in 1874 both Houses of Congress, reaffirmed this humanitarian aspiration, and finally in 1888, not satisfied with having marked out a line of conduct so laudable, both Houses of Congress adopted joint resolution requesting the President to use his influence to induce governments maintaining diplomatic relations with the United States to submit questions that might arise between them in future [to] arbitration. The Spanish Commissioners declare the hope that the case before the Paris conference will not lead the United States, by departing from such glorious precedents, to wish to settle the difficulty by the last means which among rational and free beings is sadly inevitable, although it may never be lawful, in the absence of other means more humane and tending to preserve unalterable peace among men.
Our Commissioners propose to reply to this and reaffirm their previous position and to make, unless otherwise instructed, the proposal conveyed to you in my special of November 15, and give the Spanish Commissioners a week in which definitely and finally to accept it.