done which resulted in the injury were done wantonly and unnecessarily.

And, further, in either case it was inevitable that the acts and conduct of the Spanish officers in immediate command when and where the damages were done would be under close investigation and severe condemnation by the claimants, a course which would be very offensive to Spain.

EVIDENCE FROM CUBA AND SPAIN.

Coming now to the question of obtaining evidence, especially on behalf of the defense, these facts were soon apparent, viz:

1. That substantially all the evidence for and against claims must come from Cuba and Spain.

2. That no treaty or convention of any kind existed with either country by which such evidence could be obtained, either on letters rogatory or otherwise.

3. That about all the evidence would have to be taken in the Spanish language, and be translated; and

4. The circumstances were such that the United States could not expect Spain to be very zealous in aiding the former to reduce the amount of damages to be paid under Article VII of the treaty.

Our relations with Cuba were such that we had no difficulty in negotiating satisfactory arrangements by which the judges of the Cuban courts were authorized and required to subpoena witnesses at the request of the United States, preferred through commissioners appointed to take testimony, and to administer the proper oaths to such witnesses, and provision was also made for punishing for perjury, contempt, etc., and all without charge, and the franking privilege was extended to cover and include the business of the Commission. It was soon found that at least nineteen out of every twenty witnesses spoke Spanish only, and the only feasible plan of procedure was to propound the questions in English, translate them into Spanish to the witness, whose answer was then given in Spanish, translated into English, and the question and answer recorded in English. This required a corps of commissioners to take testimony, official interprcters and typewriters, and the process of course proved tedious and expensive, but nothing better could be devised.

Taking up the subject with Spain, however, it was found very difficult to make any satisfactory agreement. It was soon apparent to the Spanish authorities that there would be much reflection upon and criticism of the acts and conduct of her military authorities in Cuba, especially as most of the claimants felt compelled, in order to plead issuably, to charge Spanish officers with negligence, wantonness, or other misconduct, as already shown. This was highly offensive to

Spain, and but for the fact that it gave her an opportunity to vindicate her officers and defend her honor, it is doubtful whether any agreement whatever could have been made.

The negotiations were, of course, conducted by the State Department, and were continued for nearly two years, when an agreement was reached which, while very unsatisfactory to the United States, seemed to be the best that could be made. Under this agreement letters rogatory were to be issued by the Commission with interrogatories and cross-interrogatories attached, and forwarded through our State Department to the Spanish minister resident here, and he to send them to his home Government for execution and return. This not only put the whole matter in the hands and control of the Spanish authorities, but they expressly reserved the right to refuse to answer any question, and to do so without reason or explanation.

It is difficult for us fully to understand and appreciate the wide difference between judicial procedure in the Latin countries and in our own country. Many of the questions, especially of the crossquestions, were such as to create in the minds of the Spanish officers, whose military conduct in Cuba was under investigation, the impression that an assault was being made upon their honor, in which case their answers would be of no value whatever as evidence under the rules which govern our procedure; it was seldom indeed that they could be induced to make direct and responsive answers to the questions. A notable exception was General Llinares, at the time of testifying minister of war. He waived any right of exemption because of his official position and narrated the facts as to the operations with which he was connected in a simple and straightforward manner, manifesting no pique or ill humor because of any reflection, real or fancied, upon his honor.

It was found necessary also to ask for very many of the orders, reports, etc., of the Spanish officers assigned to particular duties by the general in chief. These documents, it was found had been, upon the evacuation of Cuba, shipped to Spain and stored away in much confusion, and the task of sorting and arranging them fell largely upon our agent there, and at best the result has been unsatisfactory. Quite a mass of documents and considerable testimony has been procured in the manner thus indicated, but many important documents were not found, and in most instances the testimony of Spanish officers has proven of but little value because of their failure to state facts only, and facts within their own knowledge only. Oral examination by counsel present would have been much more satisfactory, but this the Spanish Government would not permit.

THE CORPORATION QUESTION.

The language of Article VII, above set out, is to be carefully noted in considering this question, viz:

The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind of either government or of its citizens or subjects, against the other government, etc.

The United States will adjudicate and settle the claims of its citizens against Spain,

etc.

Contrasted with this language, nearly every treaty which the United States has negotiated within the last forty years, for the settlement of claims reads substantially as follows:

"All claims on behalf of persons, companies, and corporations, citizens of the United States," etc., and it is specially to be noted that such was the language of the convention concluded with Spain in 1871 for the settlement of claims preferred by the United States against Spain, similar to those pending before the present Commission, and which grew out of the insurrection in Cuba from 1868 to 1878 and known as "The Ten Years' war."

Seventeen of the claims filed with the present Commission, aggregating in amount $9,487,104.04, are on behalf of corporations organized under the laws of various of the States of the United States. It was soon ascertained that in most of these claims more or less of the capital stock of the corporation was held by Spanish subjects, and in several cases most of the stock was so held. Spain, by the treaty, had expressly released the United States from any liability to Spanish subjects. The question arose, therefore, whether the United States might, nevertheless, be held liable to a Spanish subject for his pro rata share of the loss or damage, because it was held in the form of shares in a corporation. Such a result was certainly not contemplated by the treaty Commissioners, nor could it be fairly assumed Spain understood the words "citizens of the United States" as used in the treaty, as including state-created corporations, and of course it was not a question merely of what the United States understood by those words, but what did the United States have reason to believe Spain understood by the use of those words.

A secondary question was what power has the Commission to deal with such cases, but this did not seem serious in view of the fact that Congress had conferred equitable powers upon the Commission. (See sec. 1 of the organic act.) Language used by Mr. Justice Brewer in the case of Toledo, etc., Ry. Co. v. Penn. Ry. Co. (54 Fed. Rep., 746), seems specially appropriate here. He says on page 751:

I believe most thoroughly that the powers of a court of equity are as vast and its processes and procedure as elastic as all the changing emergencies of increasingly complex business relations and the protection of rights can demand.

The importance of this question, in addition to its importance as a general proposition, will be apparent when attention is called to the

fact that in one case, the Constancia Sugar Company, the damages claimed are over $4,000,000, yet of the 5,000 shares of its capital stock outstanding, 4,965 shares are and were, confessedly, held and owned by a Spanish subject. It was deemed best that this important question should be brought directly to the attention of the Commission. The proper method of raising the question was not of easy solution, but the Commission was justly credited with a sincere desire to meet the question, disregarding mere technicalities, and the Government filed pleas in abatement. If the right to make this defense existed, it would seem to follow either that the stockholders who were American citizens should be parties claimant, or that if the corporation were permitted to prosecute the claim it should do so as trustee for those entitled to share. Of course, it was urged in reply that the claim as an entirety belonged to the corporation and the individual shareholders had no interest and so no right to prosecute the claim or any part of it.

After the filing of these pleas in abatement the Commission ordered that what is known as "the corporation question" should be argued by any attorneys representing corporate claimants, both by briefs and orally, who might desire to be heard.

The contention of the Government was

(1) That corporations organized under the laws of the several States were not "citizens of the United States" within the meaning of Article VII of the treaty of Paris;

(2) That even though the United States so understood the words. used, that was immaterial, the question being whether the United States was justified in believing that Spain should and did so understand them;

(3) That in the exercise of its equitable powers the Commission had the right and power to make such order and direction as would protect the United States against liability to Spanish subjects whose claims were expressly released by their own Government, and to this end it might penetrate the fictitious person known as a corporation and apportion the damages; and it does not make against this proposition that the effect may be, in a sense, a dissolution of the corporation. It is, however, more nearly akin to a declaration of a dividend, which a court of equity has the undoubted right and power to order, where justice and equity require it.

Briefs were filed on behalf of nearly all the corporate claimants and for the Government, and the questions were argued orally before the Commission in January, 1904, and February 3, 1904, they entered the following order:

The Commission decides that a corporation may prosecute a claim to adjudication and reserves the right to determine, on final consideration, in case a claim is established, whether er any part of the award shall inure to the benefit of a shareholder who, as an individual, could not have prosecuted a claim to adjudication.

No case has yet been determined, in the determination of which there necessarily inhered a decision of the question thus raised, discussed, and reserved.

This is a matter which should receive the serious and careful consideration of our Government. The Constitution commits to Congress the right to make laws concerning naturalization, and no State has the right or power to make citizens of the United States. That State courts do this by permission of and under regulations by Congress does not in any manner affect this proposition, as, of course, when State courts are thus acting by express authority of Congress, they are in effect United States courts. Every State may, under its own rules and regulations, confer the rights of State citizenship, including the right to vote at elections for State and municipal officers and to hold State and municipal office, but this is a very different thing from citizenship in the United States. It is only those persons who are native born and those who have complied with the laws of the United States who are citizens of the United States.

Further, it is only citizens of the United States who are such in the proper and legal sense who have the right to invoke the interposition and action of this Government in their behalf in a controversy with a foreign government. Assuredly foreigners residing in this country are entitled to and will receive a certain kind and amount of protection, but this also is a very different thing from the exercise of that duty of protection which the United States owes to its citizens, and who in turn owe to the Government the duties of allegiance, service, and, if need be, the sacrifice of property and even life itself. The radical difference of course is that when a foreigner who is a resident here removes himself to a foreign country he has divested himself of the only claim he had to protection, viz, that of mere residence.

Now, is it possible that, in the face of these simple propositions, any and every State in this Union may, through its incorporation laws, create a mere fictitious person which the United States must receive, care for, and protect as a citizen of the United States? It is to be carefully observed that (1) many of the States permit a single person to form such a corporation; (2) that very few, if any, deny this privilege to a foreigner, and certainly none denies to such foreigner the right to buy up and own all the capital stock in a corporation, and thus attain the same end, and (3) the same argument in favor of the impenetrable personality of a corporation would of course apply to such a case.

It is true that the Supreme Court, in the case of United States v. Northwestern Express Co. (164 U. S., 686), held that a State-created corporation was a citizen of the United States within the meaning of the Indian depredations act, but a mere casual reading of that case