The act of cession which was signed by the commissioners states that they had had several conferences and had received documents, inventories, and plans appertaining to the property and sovereignty of Spain. The act recited that the commissioners had transmitted to their Governments "the doubts occurring as to whether the artillery ought to be comprehended in the fortifications; and if the public archives relating to private property ought to remain and be delivered to the American Government by virtue of the cession; and that there remained in the fortifications, until the aforesaid resolution is made, the artillery, munitions, and implements specified in a particular inventory, awaiting on these points, and the others appearing in question in our correspondence, the superior decision of our respective Governments." a

In the subsequent discussion of the subject between the two Governments, the Spanish Government declared that it would adhere to the strict construction of the article, and offered to pay for the provisions in consideration of the cannon being restored or paid for by the United States, the cannon being, as the Minister of Foreign Affairs observed, of greater value than the provisions. Mr. Adams replied that he had not taken into account the question of value, but had proceeded solely on principle. Under the term fortifications the United States claimed, he affirmed, the artillery, together with the walls of which they formed the defense. "The walls without their artillery were no fortifications." The United States, however, did not, said Mr. Adams, wish to press the controversy further, but would, on being repaid the cost of the provisions, permit the ordnance to be taken away."

By Art. II. of the treaty of March 30, 1867, ceding Alaska to the United States, the cession was declared to include

Alaska. the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property," as well as any Government archives, papers, and documents relating to the territory in question. By Art. IV. the two Governments agreed to appoint agents for the purpose of transferring "the territory, dominion, property, dependencies, and appurtenances" which were ceded above. The Government of the United States appointed as commissioner General Lovell H. Rousseau, and the Russian Government Captain Alexis Pestchouroff. The formal delivery was made at Sitka, October 26, 1867. The procès verbal stated that Captain Pestchouroff delivered to General Rousseau "the Government archives, papers, and documents relating to the property and dominion above named, also the forts and public buildings, including the governor's house, dock@Am. State Papers, For. Rel. IV. 750.

Mr. Adams, Sec. of State, to Mr. Nelson, min. to Spain, April 28, 1823, MS. Inst. U. S. Ministers, IX. 183, 227).

yards, blockhouses, barracks, hospitals, wharves, and schools." Accompaning the procès verbal are four inventories marked A, B, C, and D. Inventory A consists of a list of the public property in Sitka delivered to the United States. This included five forts, with their armaments, and also a number of buildings of various kinds. No mention whatever is made of furniture, and it seems obvious that it went with the buildings. Inventory B contained the property belonging to the Greek Church. Inventory C contained a list of the persons holding property in fee simple in the city of Sitka. Inventory D contained a statement of private property in Sitka. It specified a large number of buildings of various kinds, but mentioned no furniture, showing that the latter was considered for the purposes of the inventory as being included in the building. There was also a fifth. inventory, marked E, containing a list of forts, with armaments, and other public buildings on the island of Kodiak to be delivered to the United States."

A building erected in 1845 by the Russian-American Company, on land belonging to the Russian Government, became the property of that Government, and as such was transferred to the United States by the treaty of March 30, 1867, especially in view of the declaration of article 6, that the "cession of territory and dominion" was "free and unincumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders."

Kinkead v. United States, 150 U. S. 483 (1893). It appeared by the record of the negotiations that the United States increased the amount to be paid to Russia for Alaska by the sum of $200,000 in consideration of the insertion of article 6 of the treaty.

Spanish islands, 1898.

By the protocol signed at Washington August 12, 1898, Spain agreed to "relinquish all claim of sovereignty over or title to Cuba," and to "cede to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies." It was also stipulated that Spain should "immediately evacuate Cuba, Porto Rico, and the other islands under Spanish sovereignty in the West Indies," and that, within thirty days after the signing of the protocol, commissioners should meet at Havana, in Cuba, and at San Juan, in Porto Rico, for the purpose of "arranging and carrying out the details of the evacuation." Commissioners to treat of peace were to meet at Paris not later than October 1, 1898.

Prior to the negotiation of the treaty of peace commissioners on the part of the United States and of Spain met, in conformity with the

a Diplomatic Correspondence, 1868, I. 475–484.

stipulations of the protocol, at Havana and at San Juan. The American commissioners were instructed, as the relinquishment or cession of sovereignty by Spain would include all the “immovable property' belonging to the Spanish Government in the islands, to "take into possession for the United States all public buildings and grounds, forts, fortifications, arsenals, depots, docks, wharves, piers, and other fixed property heretofore belonging to Spain;" and they were further instructed as follows: "The small arms and accoutrements, batteries of field artillery, supply and baggage wagons, ambulances, and other impedimenta of the Spanish army in Cuba and the adjacent Spanish islands you will permit to be removed, if desired, by the representatives of Spain, provided such removal shall be effected within a reasonable time. The armament of forts, fortifications, and fixed batteries, being in the nature of immovable fixtures, will not be permitted to be taken, but will, in connection with said forts, fortifications, and batteries, be taken over by you into the possession of the United States." a

The Spanish commissioners, on the other hand, stated that the Spanish troops would carry with them their flags, arms, munitions, equipment, clothing, saddles, stores, artillery pieces of all kinds with the mountings, sets of arms and other accessories, as also all material of war and sanitation, the machines and stock on hand of the establishments of military industry, besides the records and documents of the military dependencies and army corps."

The American commissioners replied that under the law movable. things became immovable property when constructed or destined for the permanent use or service of immovable property. This is not only in accord with the civil law of Spain, but also with the common law. Under this rule we have claimed, and do now claim, that all the ordnance in fortifications or fixed batteries, of whatever character, kind, or condition no matter from whence brought, or what its origin may have been--all machinery attached to buildings used as arsenals or military or naval construction repair shops or navy-yards, and the shears on the docks in Havana, are immovable property, and that Spain has no right to dismount or remove, or in any manner dispose of the same, or any part thereof.“

The Spanish commissioners declined to accept this opinion, saying that they preferred to refer the matter to their Government for settlement, and remarking that they desired to state that they hold the same views as to the real estate and public buildings, the property of Spain in the island of Cuba."

a For. Rel. 1898, 910, 913.

Letter of the Spanish commissioners to the American commissioners, Havana, Sept. 18, 1898, MS. Proceedings of the Cuban Evacuation Commission. position was taken by the Spanish commissioners at San Juan.

The same

« MS. Proceedings of the Cuban Evacuation Commission: Minutes of the Joint Meeting of Nov. 16, 1898.

A formal agreement as to the evacuation was concluded November 16, 1898, by which it was provided that the Spanish troops should "carry with them their flags, small arms with the ammunition thereto belonging, accoutrements, clothing, batteries of field artillery, siege guns not mounted in fixed batteries, and ammunition thereto belonging, horses, saddles, supply and baggage wagons and their animals, ambulances, medical stores, subsistence stores, camp equipments, and records and archives of the various organizations of the Spanish forces, and of their respective bureaus." It was decided by the commission that the floating steel dry dock at Havana was to be considered as movable property belonging to Spain; and it was subsequently purchased by the United States.

With regard to other property, the agreement recited that an "irreconcilable difference" existed between the commissioners as to the disposition of the public property of Spain in the island of Cuba, and the adjacent Spanish islands, consisting (1) of artillery in fixed batteries and fortifications, the fixtures and other property thereto belonging, as heretofore inventoried;" (2) "of the machinery and fixtures and other property and material of war heretofore in dispute in the 'Masestranza,' in the 'Pirotecnia Militar,' and in the Arsenal' in Havana, and of other military and naval property of a fixed character in barracks, hospitals, quarters, and other buildings, and (3) of the real estate and public buildings on said islands belonging to or under the control of Spain;" and it stipulated that “in respect to said property, the status quo ante shall be preserved until existing differences concerning the disposition of said property shall have been finally settled. by the proper authorities."

With regard to the third class of property-the real estate and buildings belonging to Spain in the territories relinquished or ceded by her-it appears that the question was incidentally disposed of in the peace negotiations at Paris.

The American Peace Commission at Paris proposed, Oct. 3, 1898, the following articles:

"The Government of Spain hereby relinquishes all claim of sovereignty over and title to Cuba.

"The Government of Spain hereby cedes to the United States the Island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and also the Island of Guam, in the Ladrones."

Accompanying these articles there was a stipulation that the relinquishment or cession, as the case might be, included "all right and claim to the public domain, lots and squares, vacant lands, publie buildings, fortifications and the armaments thereof, and barracks and other structures which are not private individual property," as well as the public archives.

By a counter proposal of Oct. 7, 1898, the Spanish Commission, while undertaking to relinquish or cede "all the buildings, wharves,

barracks, fortresses, establishments, public ways of communication, all other immovable property which according to law attaches to the public domain, and which so attaching belongs to the Crown of Spain," put forward a stipulation that all immovable property "which under the civil law belongs to the State as patrimonial property, and all rights and property of whatsoever kind, which up to the ratification of the present treaty have been peacefully enjoyed and held in ownership by provinces, municipalities, public and private establishments, ecclesiastical and civil corporations, or any other collective bodies lawfully incorporated and having legal authority to acquire and hold property in the Island of Cuba, and by private individuals, whatsoever their nationality, are therefore excluded from the above relinquishment and transfer."

The American Commission objected to this negative clause, on the ground that in one respect it was unnecessary, and in another illogical. "So far," said the American Commission, as it affects the question of legal title it is unnecessary, since such title, if not held by Spain, would not pass to the United States by Spain's transfer of sovereignty. On the other hand, so far as it affects the question of sovereignty, it is illogical, since the sovereignty, which includes the right of eminent domain, would, if excepted from the relinquishment, remain with Spain. We should thus have the singular spectacle of Spain relinquishing her sovereignty over property belonging to the Crown, but retaining it over all other property."

The Spanish Commission subsequently waived the clause in regard to "patrimonial property," saying: "The State, under the Spanish laws, exercises all rights of ownership over the property declared by law to be public property, and it is plain that in this case the cession of the sovereignty carries with it the cession of all those rights. But the State in Spain can also, in the capacity of a body politic or corporation, acquire and hold real property, by the same means and through the same processes, as private persons can do under civil municipal law. This peculiar kind of property was the one referred to in the exception suggested by the Spanish Commissioners. Notwithstanding this fact, . . . the Spanish Commissioners do hereby waive the said exception, and agree that the patrimonial property of the State be also included in the cession and transfer of the sovereignty of Spain." a

...

An agreement was also reached at Paris concerning the heavy guns and armaments in the Philippines, but not concerning those in Cuba and Porto Rico. It appears by the record of the negotiations that on Dec. 2, 1898, the president of the Spanish Commission brought up for discussion the question of "the return to Spain of the war material in Cuba and Porto Rico, with respect to which the evacuation com

@§. Doc. 62, 55 Cong. 3 sess., part 2, pp. 22, 28, 34, 90.