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.”e

@ 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. The same position was taken by the Spanish commissioners at San Juan.

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, public 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

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

66

missions had not come to a decision, since such material in the Philippines, he understood, belonged to Spain." The question was not then discussed, but, when it was raised again, on the 5th of December, the American Commissioners declared that they were not authorized to treat" concerning the return of the war material in Cuba and Porto Rico not disposed of by the evacuation commissions; and they added, with respect to the war material in the Philippines, "that it should be governed by the same conditions as were agreed to by the evacuation commissions in the West Indies." But, says the protocol, "the president of the Spanish Commission and his colleagues maintained that the cession of the archipelago did not carry and could not carry with it anything except what was of a fixed nature; they explained the character of the siege artillery and heavy ordnance which the Americans claimed for themselves, and after some discussion to the end of determining precisely what each commission understood as portable and fixed material, it was agreed that stands of colors, uncaptured war vessels, small arms, guns of all calibers, with their carriages and accessories, powder, ammunition, live stock and materials and supplies of all kinds belonging to the land and naval forces shall remain the property of Spain; that pieces of heavy ordnance, exclusive of field artillery, in the fortifications, shall remain in their emplacements for the term of six months, to be reckoned from the ratification of the treaty; and that the United States might in the meantime purchase such material from Spain if a satisfactory agreement between the two governments on the subject should be reached.” This agreement was embodied, in almost identical terms, in Art. V. of the treaty of peace. And it was held by the United States that, under this article, the Spanish guns and other war material captured by the Navy at Cavite during active war must be deemed to be the property of Spain.

a S. Doc. 62, 55 Cong. 3 sess., part 2, p. 226.

¿S. Doc. 62, 55 Cong. 3 sess., part 2, pp. 228–229. See, also, Magoon's Reports, 566. "While it might be admitted that there would be some question of the ownership of this material in the absence of any provision with reference thereto in the treaty, there would not appear to be any doubt as to the right or power of the Commission to treat of the subject in the negotiations. . . . The Peace Commissioners did treat of the matter, reached an express agreement in regard to it, and embodied it in the treaty, without limitation or definition as to whether the property in question might have passed under the control of the United States forces either prior to or subsequent to the suspension of hostilities which followed the signing of the Peace Protocol in Washington on the 12th of August, 1898. This being so, it is not perceived how it could be claimed that the property in question was not affected by the treaty because of its having been captured during active war, unless upon the extreme contention that such material having been captured by the United States naval forces before the date of the treaty is to be considered as not coming under the description of property 'belonging to the land and naval forces of Spain.' As to this I may observe that had

H. Doc. 551-19

"A distinction is sought to be made between those waters of rivers which belong, by the law of Spain, to the State or Crown and those which belong to the public of Porto Rico. For practical purposes, in the disposition of this case, I can see no difference. Whatever property or property rights belonged to the Crown of Spain or to the indefi nite body known as 'the public of Porto Rico' were, by the treaty of Paris, transferred to and became the property of the United States of America."

Griggs, At.-Gen., July 27, 1899, 22 Op. 546, 547. Under the Spanish law, lands under tide water to high-water mark in the ports and harbors in the Spanish West Indies belonged to the Crown, and, as the property of the Crown, they became, by the treaty of cession, a part of the public domain of the United States. (Griggs, At.-Gen., July 26, 1899, 22 Op. 544.)

4. CONQUEST.
§ 87.

The holding of a conquered territory is regarded as a mere military occupation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such a transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the Government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state.

American Insurance Co. v. Canter, 1 Peters, 511.

any such important qualification or limitation been intended by the framers of the Peace Treaty it is hardly conceivable that it should not have found expression in the language of that compact. My view finds confirmation in the use in the treaty provision in question of the words 'uncaptured war vessels,' the object of which was to except from the property to be turned over to Spain the vessels which had been capturned by Admiral Dewey. No such distinction is made as to any of the other property or materials named." (Mr. Hill, Acting Sec. of State, to the Sec. of War, Sept. 23, 1899, 240 MS. Dom. Let. 253. See also, Mr. Hay, Sec. of State, to the Sec. of the Navy, Apr. 21, 1900, 244 MS. Dom. Let. 434, saying: "In Cuba and Porto Rico the Spaniards had the right (and used it) to carry away any of the described property they could find," which it was agreed they might take away, "whether it had been captured by the United States or not. The only test was that the property should be found in existence at the time of the evacuation and that the fact that it had belonged to the Spanish Government should be shown. The evacuators simply took it in the condition in which they found it.")