(f) That the Constitution provides in one of its transitory provisions, that the Republic of Cuba did not recognize any debt of liability except that legitimately incurred for the benefit of the revolution by the Chiefs of Corps of the Liberating Army, after the 24th of February, 1895, and prior to the 19th of September of the same year, on which date the Constitution of Jimaguayú was promulgated, and the debts and liabilities subsequently incurred by the Revolutionary Government or its legitimate representatives abroad. Congress will determine said debts and liabilities, and resolve accordingly for the payment of those that are legitimate. (g) The properties for the damages of which the claims are made, were properties held and operated under the rule of the Spanish Government, to which taxes were to be paid according to law, and the products or crops of which were sent to and sold in Spanish cities, and accordingly those properties were under the control of the enemy, and served their interests. (h) The principle of international law was announced by the Spanish Treaty Claims Commission (Principles 7th and 8th), and many other precedents and authorities, pursuant to which the property of alien residents like that of subjects or citizens of the country, when in the track of war is subject to war casualties, and whatever in front of the advancing forces either impedes them or might give them aid when appropriated, or if left unmolested in their rear might afford aid and comfort to the enemy, may be taken or destroyed by the armies of either of the belligerents; and no liability whatever is understood to attach to the government of the country whose flag that army bears, and whose battles it may be fighting because the destruction of property in war, where a military end is served, is legitimate. (i) The Cuban military forces were not responsible belligerents at the time when the injuries to the properties were effected, and they could not be held responsible subsequently for acts for which they were not accountable when they were execucuted, and much less can the Republic of Cuba be held liable if it is borne in mind that it came to life as late thereafter as the 20th of May of 1902. (j) The present Government of the Republic of Cuba is legally unable to assent to arbitration of the above-mentioned claims, because it would infringe the constitutional provision whereby the liabilities of Cuba are limited to the debts expressly mentioned in the Constitution. (k) The claims now before the Cuban Government were originally filed with the Government of Spain, which was held then by the Powers now pressing the claims as alone responsible for them. (1) Article 7 of the Treaty of Paris relieves Spain of her liability for all damages caused to American citizens arising during the insurrection, the fact being that Spain 'did not disclaim her original liability for all those damages. (m) The contention of the claimant nations that the former President of Cuba has committed himself regarding the arbitration of the claims cannot be sustained on legal grounds, for the reason that, even admitting for the sake of the argument that such has been the case, it would not bind the present Government or any government whatever; because, first, such arbitration is inconsistent with the above-mentioned provisions of the Constitution of Cuba, against which no government can go, and which are certainly well known by the claiming Powers; and, second, in such matters the present administration of Cuba is not concluded [sic] by the acts of its predecessor. A bill was introduced, some time ago, in the Congress of Cuba, providing for submission to some kind of arbitration, of the claims which Great Britain, Germany and France have filed with the Cuban Government, for damages done to the properties belonging to citizens of those nations by the forces of the Cuban Revolution for Independence. The bill has not ultimately passed, and accordingly has not become a law, so that now the President of Cuba is the one called upon to decide the future course that the Cuban Government should adopt in regard to those claims. Confidential advices from the Secretary of State of Cuba suggest, though only tentatively, that the best course to pursue is to undertale, first of all, a close examination of each and every one of the claims, so as to determine: first, whether the claimants are really of English, German or French nationality; second, whether their claims are such as may be judged of and approved by Congress pursuant to the first Transient Provision of the Constitution of Cuba; third, whether the titles of the claimants to the properties are good titles pursuant to Cuban law. If the result of this examination should be, as it will most probably be the case, that some or many of the claims are not such as may be covered by the above-mentioned Transient Provision of the Constitution, the Government of Cuba will have to contend that it cannot assent to an acknowledgment and payment of those claims, and the European Governments will, on the other side, argue that Cuba must pay those claims, there arising accordingly a conflict of views between the Governments of the three claiming Powers and the Government of Cuba, and then will be the opportunity to consider whether the question at issue should be submitted to arbitration. What the arbitrators would have to decide upon, would be whether in view that the Constitution of Cuba does not permit the payment of that class of claims, and in view that the only Cuban Government recognized by the above-mentioned Powers has been the Constitutional Government of Cuba as it was established when Cuba was constituted as an independent Power on the 20th of May of 1902, which Government cannot violate its own Constitution, and in view that the same Powers did never grant belligerent rights to the Cuban Revolutionists, and, on the contrary, accepted the assertion constantly made by Spain that there was no state of war in Cuba but only an uprising of a few or many rebel subjects of the Government of Spain, to which accordingly they favored with sales of arms and ammunition-whether in view of all this the above-mentioned Powers are justified in pre senting now those claims for acts which took place before the advent and birth of the Cuban Republic which was established with its present status pursuant to a law of the Congress of the United States and by order of the President of the same country, who, in his letter of May 10th, 1902, and dated in Washington and addressed to the President and Congress of the Republic of Cuba, said: "On the 20th of the present month the Military Government of Cuba, complying with my instructions, will turn over to you the command and government of the Island of Cuba, so that you may thereafter exercise said command and government pursuant to the provisions of the Constitution approved by your Constitutional Convention, and as promulgated on that day, and he will at that moment declare that the occupation of Cuba by the United States has come to an end." In case that the award of the arbitrators should be against Cuba, then and only then will the time come to consider and decide as to the appointment of a commission which may consist of one arbitrator for us and another for the three Powers, with a president appointed by a friendly Government not interested in any of the points submitted, which commission shall decide the cases in which Cuba should pay and the amounts to be paid, according, of course, to the principles of international law, but provided that the claims or that part thereof as may arise from damages caused in the course of or as a result of military operations or by the necessities of war or caused in properties of claimants who may have sided with the Spanish Government or given it any aid as, for instance, paying taxes to same or the like, shall be rejected. File No. 437.00/60. The 'Department of State to the Legation of Cuba. [Memorandum handed to the Cuban Minister on July 12, 1913.] The desire of the Cuban Government for full information as to the ownership and nature of the claims which the foreign Powers desire to arbitrate seems to be altogether reasonable. It is doubtful, however, whether either in the preliminary examination of the claims by the Cuban Government or in their subsequent arbitration, if one should be agreed upon, the First Transient Provision of the Constitution of Cuba would play an important part. For so thinking there are two reasons. The first of these is that a government is not permitted to set up, as a final answer to demands for the performance of international obligations, provisions of its municipal law, either constitutional or statutory. This principle has been clearly established or many occasions, and very notably in the settlement of the so-called Alabama claims by means of the award of the Geneva Tribunal. In the second place, it is by no means clear that the First Transient Provision forbids the Cuban Government to recognize claims not therein mentioned. The language of the provision is that the Republic of Cuba" does not recognize" any other debts or obligations than those therein mentioned, and that the Cuban Congress "shall examine said debts and obligations and decide upon the payment of those which are found legitimate." The debts and obligations thus referred to are those "legitimately contracted in favor of the revolution" by commanders of the liberating army before September 19, 1895, and by the revolutionary government after that date. These words indicate that the object of the first transient provision was primarily to recognize and provide for the payment of a certain class of claims. It gave no recognition to other claims; but, in view of the principle above mentioned, it can scarcely be construed as having been intended to forbid the Cuban Government to recognize claims for which it might be liable under international law. It may be doubted whether, as a matter of practical procedure, it would be desirable to have two processes of arbitration, one for the purpose of determining general questions of liability under international law and the other for the purpose of passing upon the actual claims. There is, however, something to be said in favor of such a course; and, if it should be thought best to adopt it, the immediate submission to arbitration of some or all of points (a) to (m) of the first memorandum of the Cuban Legation would seem to be a logical step. But it is conceivable that practical considerations may lead the Cuban Government to desire first to make a preliminary examination of the actual claims. File No. 437.00/57. The Cuban Secretary of State to the French Minister to Cuba' [Translation by the Cuban Legation, left by the Cuban Minister at the Department of State.] FOREIGN OFFICE, Habana, August 18, 1913. MR. MINISTER: Pursuant to what was stated in my note of the 5th of June last, I hasten to inform your excellency of which is the view of the President of the Republic and its Government, in the matter of the claims of some English, German and French citizens for acts that took place during the war for the independence of Cuba, and of the best plan to be followed in order to reach a final decision of the questions arising out of those claims, which will be the means of strengthening, still more than they are at present, the good relations which happily exist between the Cuban Republic and the three claiming Powers ever since the former came into national life on the 20th of May, 1902, and its Constitutional Government was recognized, for the first time, by the three Powers. Neither the first Government of the Republic of Cuba which was presided over by Señor Estrada Palma-to which in 1903 it was made known that there were French, English and German nationals who believed themselves entitled to file specific pecuniary claims arising out of the war of independence against Spain, notwithstanding that This note was also sent to the Ministers of Germany and Great Britain. their respective Governments did never grant belligerent rights to the Revolutionary Government, and for which reason those nationals could never be entitled to consideration as neutrals in that struggle, not only because they always maintained their allegiance to the Government of Spain and paid taxes to it, helping said Government to defray the expenses of the war, but also because Spain had always facilities of all kinds and of which the revolutionists were deprived of, to obtain loans, arms and ammunition and vessels in England, Germany and France, which Spain made use of in order to wage a war of extermination against the Cuban patriots-neither that first Government ever requested that the claims should be presented in due form, so as to be able to examine them, and find out in what they consisted, and separating and classifying them, neither did the Government of President Gómez ask to have same duly filed, for it confined itself only to denying the soundness of the majority of the said claims, until finally, and in view of the insistence of the claiming Powers that some solution be forthcoming, for which end they proposed in their joint notes of July 3rd, 1911, the submission of the claims to an international arbitration, it accepted in principle said arbitration in a note of the Secretary of State, Mr. Sanguily, of July 10th, 1911, and addressed to the Diplomatic Representatives of the three Powers, proposing the acceptance, as the sole arbitrator, of the President of the United States of America, Mr. Taft, and reserving to specify the matter which should be the subject of the arbitration. The non-acceptance of that sole arbitrator by the three Powers, and their proposal of the 9th of August, 1911, that in view of the international importance of the decision, the arbitration should be entrusted to a commission in which the three Powers should be represented, caused my learned and honorable predecessor to suggest, on the 12th of said month and year, to the Representatives of the Powers that inasmuch as they had declined to accept the proposition of having recourse to a sole arbitrator, the Government of the Republic might judge itself free from the obligations that they wanted to impose on him, and the ground of which might have been the acceptance in principle of the arbitration proposition that was made to them, but as the Powers on the 7th of November 1911, again insisted that the question be submitted to an international arbitration, inasmuch as the Government of Cuba, when it proposed the arbitrator of a head of a nation had, in their judgment bound itself to adopt the principle of arbitration, although not to any specific procedure therefor, he stated on the 28th of February 1912 that the Government did not at that time reject in principle, as it had not rejected before, the recourse to arbitration, for on the contrary it reiterated its adhesion to that principle of deciding through that method the international conflicts of all of which there was unequivocal evidence in the Convention of The Hague of the 18th of October, 1907, which was signed by the Delegates and approved by the Senate on the 10th of March 1909, and in the other Convention of Rio de Janeiro of the 13th of August 1906, which by reason of the recess of the Senate of the Republic was approved and ratified by the Provisional Governor, on the 17th of March 1908, who hastened to declare in the name of the Government of the Republic of Cuba that |