Wednesday, November 30th, 1898

In spite of the fact that it was desired to submit the tentative text of the entire treaty to the Commission this morning and discuss it article by article, work was only begun a full hour late. Even then Senator Gray was absent as usual, but at last his presence was secured by sending for him.

A dispatch of thanks from the President was first read, and one reminding us of the need of reviving copyright stipulations from the State Department. Then came an interruption by Ojeda of the Spanish Commission, who brought in various suggested changes in the articles on which he and Moore had been in consultation. These mainly came, as we understood, from Montero Rios.

As soon as the article was reached for the payment of $20,000,000 I proposed that the blank in the date be filled by the insertion of the words “three months.” Senator Frye opposed it on the ground that so short a time would entail the danger of an extra session [of Congress] in order to secure the appropriation. Senator Davis at first was rather inclined to the same effect. I argued that the necessity for prompt action might be an additional reason to be urged for speedier action on the treaty, and that the actual appropriation need not take half an hour on the last day of the session. I pointed out privately besides to Frye that if we were to let it go past the 4th of March, [1899,] in order to avoid an extra session, we could not reasonably expect to pay before the first of January, [1900,] next. Such a delay in the case of a rich nation dealing with a prostrate and impoverished one would seem to be so long as to require explanation. He finally fell in with this view, and the Commissioners uniformly agreed to the three months.

In this discussion I had taken the ground that now that we had gained the essentials, it was desirable that over small matters, where we could afford it, we should not seem to stickle, but could afford to be magnanimous. For this reason I moved that the figure to be offered for Kusaie should be fixed at a million. Frye objected that the island was not worth so much, and thought that the expenditure of half a million at Midway Islands would probably make them as good a point for a cable landing. On the other hand, I urged that it was desirable at any rate to get Kusaie on account of our missionaries, and for the mere prestige besides of succeeding in what we had asked for. [I] thought the million dollars ought to be something of a temptation to Spain. The figure was finally unanimously agreed to.

On the same theory of being generous to a needy and fallen foe in unimportant matters, I proposed that the prisoners in Manila, concerning our right to hold which there was some doubt, at any rate, should be returned to Spain at our expense, and that the same policy should also be extended to the prisoners held by the Filipinos. . . . The probable cost was speculated over, and it was finally agreed that ships could probably be found to bring them at an average price of about $50 or $60 a head, and that the total outlay need not exceed, and possibly not approach, a million [dollars]. The Commissioners finally agreed that the article might be drawn with the provision that the prisoners held by either side should be returned to their homes at the expense of the country holding them.

When the clause for the “open door” in the Philippines came up, a blank had been left for the insertion of the number of years for which this privilege was guaranteed to Spain. It was proposed to make it ten years on the same general principle of being liberal, and of not making a term of years so short that commerce could not fairly and profitably adjust itself; and there was finally no objection. When Judge Day and Senator Gray talked rather cautiously about extending this to Puerto Rico, Senator Frye gave notice that he should protest most vigorously against such a course. …

Secretary Moore mentioned that Ojeda had communicated the feeling of the Spanish Commissioners that they had made the utmost possible concession and hoped that nothing more would be asked of them. He interpreted this [to mean] that they did not want to be asked for stipulations about religious liberty in the Carolines, the sale of Kusaie, or anything else outside the protocol. A feeling began to be expressed among the Commissioners that there was a possibility of our finding in the end that we could get nothing from the Spaniards except what we had already extorted by our ultimatum.

The articles as finally agreed upon, owing to the lateness of the hour at which we began, had to be sent down piece-meal, to be typewritten in a rush, and Secretary Moore only escaped with the last of them about half past one o’clock. The meeting with the Spaniards was to be at 2 o’clock, and a few minutes before that hour I rushed off with Judge Day “to hold the fort,” as we expressed it, until the secretary [Moore] could come along with the articles. Senator Gray and the other Commissioners came a little more leisurely. We kept the Spanish Commissioners waiting over half an hour.

As soon as the daily protocols were read our articles were submitted, read in English and Spanish, and mutually agreed to up to that on the Philippines. At this point Montero Rios objected to the provision that the United States “will, as far as possible, preserve order and protect property throughout the Philippines, until the ratification of this treaty.” This, he said, presupposed an immediate exercise by the United States of the functions of sovereignty. He did not feel ready to stipulate for such an exercise before the sovereignty itself was ceded. Senator Gray remarked that the protocol itself as to the harbor and bay of Manila was not a cession of sovereignty. This provision merely extended the powers conferred by that protocol over the rest of the archipelago provisionally, and obviously for the common good. Montero Rios repeated that the Spanish Commissioners were not now authorized to give such authority, but he saw no objection to laying it before [his] government. The Spanish Commissioners were not at present authorized to take any executive action such as this would be. Senator Davis said the only desire of the American Commissioners was to provide temporarily for the preservation of order. Montero Rios replied that their objection was not to the thing desired, but as to the authority of the Spanish Commissioners to give it.

Senator Davis then offered in writing the clause, “provided nothing in this shall be construed as a cession of sovereignty before the ratification of this treaty.”

Montero Rios repeated that he recognized the weight of the suggestion offered by the American Commissioners, but the Spanish Commissioners were without power in the premises, and would at once apprise their government and ask for instructions. Judge Day replied: “We know that disorders are existing there now, and that there is destruction of property, if not also danger to life. All the proposed clause does is to charge the United States at once with the duty of protecting life and preserving order.” Since there was objection, however, he thought it better to pass the subject provisionally till the Spanish Commissioners could get authority and then have it incorporated in the treaty. To this Montero Rios agreed. Gray then repeated that it was only proposed because we have the power to do this [since it] was incidental to the general powers we already possessed. Montero Rios replied rather tartly: “The American Commissioners are, no doubt, perfectly conversant with the powers they possess; but we do not consider our powers sufficient for this act, although we recognize its desirability.” The secretaries then read the next article and Guarnica immediately said that the cession here did not include all the war material, artillery, etc., reserved to Spain in the agreement of the evacuation commissioners [in Cuba]. All heavy artillery that can be removed should be reserved to Spain [he said]. Their understanding was that this particular, if not already settled by the evacuation commissioners, should be settled here. He did not now refer to cases already agreed to in the West Indies, but thought the same principle should be adopted here.*

Judge Day said the purpose of this article was to do just that. If there were some suggestions concerning artillery on which the commissioners in Cuba and Puerto Rico have not been able to agree, then on those points we would undoubtedly have to reach some decision here. Meantime he thought it would be desirable to telegraph and ascertain exactly what had been agreed upon in Cuba and Puerto Rico.

Guarnica replied that there was no evacuation commission for the Philippines. He would like an agreement now that all war material and heavy artillery should be definitely reserved for Spain. Judge Day repeated his suggestion that the American Commissioners would prefer first telegraphing to ascertain exactly what the joint commissioners, charged with the decision of this very subject in Cuba and Puerto Rico, had determined. Abarzuza here interjected: “Certainly, we can’t lose anything by that.” A little debate here sprang up among the Spaniards themselves at the table, it seeming as if Abarzuza did not quite agree with the persistency of Guarnica. While it was going on, Montero Rios asked if there was any objection to reserving all the war material in the Philippines, and all not already agreed upon in Cuba and Puerto Rico. Judge Day stuck to the position that he preferred to telegraph and ascertain what had been agreed to by the joint commissioners charged with this question in Cuba and Puerto Rico before undertaking to go farther here. [He] preferred, therefore, that for this purpose the articles should be passed. It was thereupon so agreed.

Montero Rios next objected to the phrase “in consideration of the provisions in this treaty.” The objection was obviously based upon the difficulty of a Spanish lawyer, trained only in the civil law, in understanding the exact meaning which American lawyers attach to this legal phrase.

The American Commissioners generally agreed that they might as well leave it out. [However,] Judge Day whispered to me that it might nevertheless be of some value as proving that the cession of the Philippines was not in the nature of a gratuity, and so might have a bearing on future claims as to responsibility for the debts. Montero Rios finally agreed that this question might be left to the secretaries.

The article permitting free entry of Spanish ships and goods in the Philippines for ten years was next reached. Montero Rios asked in a very quiet way if there was any objection to extending this privilege also to Cuba and Puerto Rico. Day replied that was not a question which had been considered, but the American Commissioners would be glad to take it into consideration, and take it up at the next meeting. Montero Rios said he hoped that in considering it they would bear in mind that the customs of a people could not be changed between night and morning. The sovereignty might so be changed, but customs were harder to disturb. Any effort at an immediate change would also give a sudden wrench to industry in Spain. It was most desirable that Spanish commerce might have a little time to find new channels before it was abruptly turned out of the old ones. Gray had been listening to this sympathetically, and interjected in an audible “aside” addressed to me that this was a very weighty and just observation. Day replied that the American Commissioners fully appreciated the weight of the suggestions advanced and would take them into consideration.

The next question taken up was that of the release of prisoners and transport to the nearest port in their own country. Frye inquired if any idea could be given as to the number of prisoners in the hands of the Filipinos. Montero Rios said he had no idea, and was not sure if his government knew. He thought, however, that the number was not great. Frye asked again if what the Spaniards desired on this article would include other prisoners than those now held by the Americans and by the Filipinos. Montero Rios said that he understood there were no others.

Frye next asked how lately any artillery had been sent to the Philippines. Montero Rios referred the question to Gen. Cerero, who said he thought none had been sent since 1885. With this the examination of the articles, the double text of which in English and Spanish had been agreed upon by the two secretaries, was completed. Montero Rios then said that the Spanish Commissioners were quite at the disposition of the American Commissioners as to their proceedings. He thought, however, that time would be gained by having the secretaries get the rest of the articles also into a settled text in both languages, to be then taken up tomorrow afternoon. Day suggested that perhaps the secretaries themselves could agree on some of them. Montero Rios said that his understanding was that by tomorrow we could take up everything the secretaries should have ready in both languages. Day proposed three o’clock as a better hour for meeting, and it was finally agreed upon.

As soon as the Joint Commission adjourned, Day proposed that the American Commissioners remain and prepare a dispatch at once on the points raised by the Spaniards with a view to getting news from home at the earliest moment.

Gray was eager to recommend the extension of the “open door” to Cuba and Puerto Rico, as requested by the Spanish Commissioners. Senator Frye was strong to the point of vehemence against it. Judge Day said he would be ready for it if it could be used as a means of securing Kusaie and religious freedom in the Carolines. Senator Davis did not express himself with quite his usual vigor, but did not favor the proposal. Finally, Frye and Gray wrote individual dispatches on the subject, and it was then agreed that all might as well do the same. The following was the text of mine:

Reid objects to Commission’s taking initiative on subject no way covered by our instructions; especially as proposed action would injure the future extension of present long-standing policy of Government to Puerto Rico and Cuba. He thinks no step of such gravity should be proposed here without action of President, if not also of Congress.

[We were] surrounded by French reporters at the door, who insisted on knowing whether the treaty had been finally signed; how many articles had been considered and agreed upon, etc., etc. As I was the only American they could get at, they made a dead set for me. But, as usual, [I] escaped with as brief answers as possible. . . .

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