Spain, or sooner if possible. Provision made for residence of such Spanish troops as for unavoidable reasons can not be embarked at an earlier date. Agreement also made as to what Spanish troops shall carry with them. But in matter of fixed property irreconcilable differences heretofore existing still continue, making agreement impossible. Both commissions agree to refer question to their respective Governments, status quo ante to be preserved by Spanish authorities pending final decision in matter. Particulars of whole subject of agreement by mail.

WADE, Chairman.
CLOUS, Secretary.

ARTICLE III. An irreconcilable difference existing between the commissioners of the Government of the United States and the commissioners of the Government of Spain, respectively, parties to this agreement, as to the disposition of the public property of Spain in the island of Cuba, and the adjacent Spanish islands, consisting: First. Of artillery in fixed batteries and fortifications, the fixtures and other property thereto belonging, as heretofore inventoried, under the direction of the aforesaid commissioners, by Lieut. Col. Joaquin Ramos, of the Spanish army, and Capt. J. C. W. Brooks, United States Volunteers.

Second. Of the machinery and fixtures and other property and material of war heretofore in dispute in the "maestranza," in the "pirotecnia militar," and in the "arsenal" in Habana, and of other military and naval property of a fixed character in barracks, hospitals, quarters, and other buildings; and

Third. Of the real estate and public buildings on said islands belonging to or under the control of Spain.

It is agreed by the aforesaid commissioners, respectively, that in respect to said property the statu quo ante shall be preserved until the existing differences concerning the disposition of said property shall have been finally settled by the proper authorities, and the aforesaid commissioners of Spain do hereby agree that the said property shall, pending such settlement, be securely kept and not disposed of in any

manner.

Done at Habana, in duplicate, in English and Spanish, by the undersigned, who have hereunto set their hands and seals the 16th day of November, 1898.

(See page 117 Proceedings of Evacuation Commission, on file in War Department.)

EXHIBIT C.

With regard to the return of the war material in Cuba and Porto Rico not disposed of by the evacuation commissions, the American commissioners declared that they were not authorized to treat.

With respect to the war material in the Philippines, the American commissioners stated that it should be governed by the same conditions as were agreed to by the evacuation commissions in the West Indies.

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.

EXHIBIT D.

The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces. The arms of the soldiers in question shall be restored to them.

Spain will, upon the exchange of the ratifications of the present treaty, proceed to evacuate the Philippines, as well as the island of Guam, on terms similar to those agreed upon by the commissioners appointed to arrange for the evacuation of Porto Rico and other islands in the West Indies, under the protocol of August 12, 1898, which is to continue in force till its provisions are completely executed.

The time within which the evacuation of the Philippine Islands and Guam shall be completed shall be fixed by the two Governments. 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 of Spain in the Philippines and Guam remain the property of Spain. Pieces of heavy ordnance, exclusive of field artillery, in the fortifications and coast defenses shall remain in their emplacements for the term of six months, to be reckoned from the exchange of ratifications of the treaty; and the United States may, in the meantime, purchase such material from Spain if a satisfactory agreement between the two Governments on the subject shall be reached.

The Secretary of War approved of the view expressed in said report, that the proposed negotiations would not be within the jurisdiction of the War Department. He further approved of the suggestion that the State Department be requested to call upon the Government of Spain for an itemized statement of the property claimed. The State Department was so advised, and subsequently received the desired statement from Spain and transmitted it to the War Department. Thereupon the statement was forwarded to the military authorities of the United States in Cuba and Porto Rico for report. The reports being received were transmitted to the State Department, wherein the negotiations with Spain are now pending. (See files in office of Adjutant-General, U. S. A., War Department.)

THE CONCESSION TO CANALIZE THE MATADERO RIVER FROM THE CRISTINA BRIDGE TO THE BAY OF ATARES.

[Submitted August 28, 1899. Case No. 771, Division of Insular Affairs, War Department.]

SYNOPSIS.

1. The concession to canalize the Matadero River from the Cristina Bridge to the bay of Habana at the Atares Cove, granted by order of Captain-General Blanco, dated September 28, 1898, to Messrs. Manual Gomez de Aranjo and Felipe Pelaez de Amigo, is prima facie a lawful and existing concession, conferring rights, privileges, and benefits as therein set forth.

2. The Habana Canal Company appears to be the present owner of said concession, and as such is prima facie entitled to exercise the rights and enjoy the privileges and benefits thereby created.

3. Said recognition of said concession as prima facie lawful and existing shall not be construed as conclusive as to the lawful character of said concession nor as to the fact of its legal existence. Nor shall such recognition prejudice the rights of any person, public or private, which are in any way injuriously affected by said concession or by the exercise of privileges or powers claimed under said concession.

4. The courts of Cuba are not bound in any way by such recognition of said concession as prima facie lawful and existing, but shall in all cases wherein the court has jurisdiction consider questions relating to said concession without reference to said recognition.

5. The exercise of the rights claimed under said concession shall be subject to the direction and control of the provisional government in all matters relating to the public health and welfare, or other necessity requiring the exercise of the police power of the State.

The Matadero River runs through a portion of the municipality of Habana. The cove of Atares is a portion of Habana Harbor.

On August 31, 1896, Messrs. Felipe Pelaez de Amigo and Manuel Gomez de Aranjo applied to the Spanish captain-general, the governor of the island of Cuba, for a concession authorizing them to construct a canal in said river from the place where the Cristina bridge crosses said stream to the bay of Atares, and also to authorize the use by them of the lands owned by the Crown of Spain along the proposed route of the canal for the purposes of said canal and on which to erect buildings, wharves, and other structures. The application proceeded on its way through the various official channels, was the subject of many reports, and finally, on September 28, 1898, Governor-General Blanco, by a decree issued by him as governor-general of the island, authorized Messrs. Pelaez and Gomez de Aranjo to construct said canal, and granted them the use of the public land necessary for the enterprise within a zone of 20 meters on each side of the canal, under certain conditions set forth in the decree of concession.

This concession has been purchased by the Habana Canal Company, a corporation, which now desires to exercise the rights therein provided, and makes application to the provisional government in charge of civil affairs in Cuba for permission so to do. The governor of the island, Major-General Brooke, forwards the matter to this Department for determination.

At the threshold of this investigation there is met the report of Brigadier-General Ludlow, the governor of the province of Habana, as follows (see letter dated June 17, 1899):

It will be noted that the proposed work affects what is recognized as the most dangerous locality in the harbor, involving as it does the disturbance of a mass of putrescible material which has accumulated in the Matadero Creek and the head of the bay during a century or more. The handling of this material and its disposition are matters having serious relation to the question of the public health, and what might be deemed almost excessive precautions are essential unless grave peril is to be incurred. In addition to this, the work provides for the filling in of the low lands

adjacent to the channel, and this work likewise, unless conducted with a full recognition of the responsibility for the results that may ensue, is attended with the danger of creating an immediate and possibly continuing source of infection.

The governor of the island, Major-General Brooke, indorses Brigadier-General Ludlow's report, as follows:

Particular attention is invited to the remarks of General Ludlow regarding the danger which will attend this work. I am satisfied his statements are correct.

indorsement June 24, 1899. )

(See

Mr. Attorney-General Griggs, in a letter to this Department of date July 10, 1899, discusses the claim of Michael J. Dady & Co., that said company has an existing contract with the city of Habana to construct a system of sewers and pave the streets for said city, and also the demand made by said corporation to be allowed to proceed with the performance of said contract, which permission had been refused by Brigadier-General Ludlow, the governor of the province, and the refusal sustained by the governor of the island, Major-General Brooke. In said letter the Attorney-General says: (22 Op., 529.)

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The practical question for the military authorities in Habana is whether it is advisable, as a public matter, and having in mind solely the public interests, to permit a contract * which involves the tearing up and disturbance of the streets of the city in a manner which may greatly endanger the public health, to be carried on at the present time. If the authorities were convinced that Michael J. Dady & Co. had a vested right or a complete contract, it would be within their lawful province to suspend its execution, if they thought the public health or other interests required.

In the same way the rights of the parties claiming under this concession, whatever they may be, are suspended, if the exercise of said rights endanger the public health. The Habana Canal Company recognizes this limitation and professes entire willingness to perform the work at a time and in a manner to meet the approval of the Government authorities.

The canal company desires that a determination be had at the present time upon its application for recognition of the concession and rights claimed thereunder by the company. The company desires to be advised as to its situation, that further expenditure may be avoided if recognition is refused, or that the necessary provisions be made to perform the work in the winter season, or as soon as the permission of the proper authorities can be secured.

It seems to be conceded that the work for which this concession provides will, when accomplished, be of great value to the public, both in business and sanitation. Regarding the Matadero Creek, MajorGeneral Brooke says in his indorsement on Brigadier-General Ludlow's letter:

I * * * believe a large proportion of the unsanitary condition of the harbor is due to the polluted deposits emptied into it from this stream, into which the offal from the slaughterhouse has been thrown for many years. This has been stopped, and dredging is now in progress.

The canal company claim that by confining the water of the creek within the banks of a canal the force of the current will be increased, the filth of years scoured out the channel, the deposit of filth at the mouth of the stream lessened if not removed, and the formation of such deposits hereafter prevented. The stream will then drain the swamps adjacent thereto, and the "filling up" of the lowland will also be of great advantage.

If the canal company are allowed to do this work under said concession, it will be without expense to the Government. The compensation to be received by the company is the right to use certain lands, now of such character and condition as to be of little if any use.

The decree confirming the grant not being signed and promulgated at the time the agreement evidenced by the protocol of August 12, 1898, was entered into, could said grant be perfected thereafter by action of the Spanish Crown or its officers?

In Harcourt e. Gaillard (12 Wheat., 528) the court say:

War is a suit prosecuted by the sword, and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails can only derive validity from treaty stipulations.

This case is cited to direct attention to the rule where war is waged to decide a controversy between conflicting claims to the same territory. Where the title of the sovereign in possession is admitted, and the war is waged to compel him to cede his title or relinquish it, the rule is different, and such sovereign may convey his property during the war so long as he prevents his adversary from securing possession thereof, and the conveyance is made in good faith and not for the purpose of preventing his adversary from securing said property. (Halleck's Int. Law, 3d ed., vol. 2, chap. 33, secs. 23, 24, 25.)

That the United States considered the title to public property in Cuba to be in the Crown of Spain is shown by the provisions of the treaty of peace (Paris, 1898), as follows:

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ART. S. * * * ** ** all the buildings Spain relinquishes in Cuba and other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Spain.

The United States dealt with Spain, in negotiating the late treaty of peace, as a proprietor, not a pretender, and required Spain to relinquish a title, and not simply a claim of title. If Spain were possessed of title to relinquish in December, 1898, it possessed such title prior thereto and might transfer the same if acting in good faith.

As to individual rights, a treaty is considered as dated at its ratification. (Havere. Yaker, 9 Wall., 32; United States v. Arredondo, 6 Pet., 748, 749; United States e. Sibbald, 10 Pet., 313, 323.)

Did the Crown of Spain complete the grant of the concession claimed herein prior to the relinquishment of property rights to the public domain in Cuba?