Monday, October 31st, 1898

… There was some speculation as to the attitude the Spaniards were likely to take when our Philippine demands were presented. Secretary Day was full of eagerness to study all the French dictionaries I could lay my hands on as to the meaning of the words “disposition,” “government,” and “control” as transferred from the English to the French text in the protocol. The rest of the Commissioners generally held the view expressed by Senator Gray that these words were so plain that it would be of little use to cite definitions or permit much merely verbal dispute about them.

A dispatch from Secretary Hay was read acknowledging our last dispatches concerning our intentions and approving them. It contained, however, a specific instruction not to lose sight of the fact that we held Manila by right of conquest as well as by the protocol. Secretary Day disputed this emphatically, and cited the resolution passed in the Pan-American Congress [in 1889-1890] on the motion of Secretary [of State James G.] Blaine committing our government against any territorial acquisitions by conquest. [He] maintained also that this was the tendency of civilization, and of the best writers on international law. [He thought] it would never do for the United States government to take Luzon or any other territory by conquest. It must be rather in the nature of indemnity for the war, which had been forced upon us or in payment of damages to American citizens. He also referred to the various authorities on international law holding that places captured after an armistice had been agreed upon, but before the news of it had reached the spot, must revert. This is the precise point to which I had called his attention weeks ago. I now reminded him that I had then pointed out the tendency of the authorities that way, and he had entertained an opposite view. He frankly admitted it. [He said that] on investigation, he found that my view was absolutely right, and that there was not a single respectable authority on international law which did not sustain it. He had been having Secretary Moore and others in the office collate these authorities, and a long series of extracts was read.

The Commissioners seemed to be unanimously of the opinion that we could not claim Manila by conquest. Senator Frye went so far as to declare that we had no right to the Spanish prisoners we were now holding in Manila, Others combated this view on the ground that we could not have released them, since then they would have inevitably proceeded to make war upon the insurgents in other parts of the Philippines. [This] we could not be justified in permitting, after the co-operation the natives had rendered us.

When we encountered the Spaniards in the ante-room at the Foreign Office in the afternoon, they were obviously under a little constraint and excitement, though, as usual, ceremoniously polite. Our proposal was handed to the interpreter. I fancy that they had not expected it to be ready so promptly, and were a little disappointed at seeing it turned over; but this may have been mere imagination. Abarzuza asked to have it first read in English before the translator put it into Spanish. It seemed to me he wanted to break its force a little in reaching Montero. Ferguson read it first in English, and then made a rather fluent translation. The attitude of the Spaniards while this reading was going on seemed to be one of despairing resignation. Guarnica once or twice whispered some proposal to Montero, who said “No,” rather positively. Villa-Urrutia also whispered some suggestion, which was received in
the same way; and then the two whispered together with Cerero. Abarzuza’s resigned attention to the reading was almost plaintive.

The instant it was finished, Montero said quietly that the proposals were of such gravity and importance, as would require the most careful attention and considerable time. He therefore suggested a postponement until Friday, with the possibility of their even then finding it necessary to ask a still longer delay. We at once agreed, and the Commission arose.

The members, however, lingered much longer than usual. In fact it seemed to me at one time as if the Spaniards were trying to out-stay the Americans. They walked up and down in the ante-room in groups, talking sometimes in an earnest and somewhat animated way. Gray and Day continued at the table writing.

Day finally asked me to detain Frye and Davis, since he wanted to telegraph the government reporting what we had done, and reply to the instructions requiring us to hold Manila by conquest, as well as by the protocol. So far as the mere question of Manila was concerned, the Commissioners might possibly have agreed. But Secretary Day had written his dispatch so as to embody a sweeping declaration that there were no circumstances under which the United States could hold territory by conquest. I was inclined to object to this, but was fortunately
saved the necessity of antagonizing the Secretary [Day] by the outspoken opposition of Senator Davis. He would not, he said, sign any such proposition, because he did not believe it to be good international law or good sense. He did not consider that we were bound by Secretary Blaine’s rather gushing resolution in the Pan-American Congress. He would have to take in hand the work of carrying this treaty through the Foreign Relations Committee and the Senate. He did not propose to have his hands tied by a declaration of this sort, which he might have to repudiate. Judge Day was little inclined to argue the question, but Senator Davis was positive. He then said that there would be no object in sending his dispatch unless the Commission could be unanimous about it. He would not argue in favor of the right of conquest, himself, but if other members of the Commission wished to do so in the joint session, there was no reason why they should not. He would also reserve to himself the liberty of writing to the President expressing his individual views, and asking for a revision of the opinion expressed in the dispatch.

[Day] and one or two of the other Commissioners continued at work at the table. The Spanish Commissioners had sometime before taken their leave of us and gone home, and Davis and I finally left our colleagues and drove home. …

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