Evening star. [volume] (Washington, D.C.) 1854-1972, 1902-11-24
VARIOUS DEMURRERS
HOW THEY WILL BE PASSED
UPON.
Mr.. Maury Dissents From Action Of
the Majority-Mr. Chambers Also
States His Position.

Hlitt6O-tAe following.
1. Under Article VII of the treaty OF
Paris the United States assumed the pay
ment Of all claims Of her own citizens for
which Spain would have been liable accord
ing to the principles Of international law.
L. follows. therefore, that the sole question
before this commission Is that Of the pri
mary liability of Spain; which Is not in any
way enlarged by the agreement of the
United States to adjudicate and pay such
claims.
2. Although the late insurrection in Cuba
assumed great magnitude and lasted for
more than three years, yet belligerent
rights were never granted to the insurgents
by Spain or the United States so as to
create a state of war in the International
sense which exempted the parent govern
n.ent from liability to foreigners for the
acts of the insurgents.
3. But where an armed instruction has
gone beyond the control Of the parent gov
eminent the general rule Is that such gov
eminent Is not responsible for dana geS
done to Foreigners by the insurgents. If,
however 1t be alleged and proved in any
particular case before this commission that
the Spanish authorities by the exercise Of
due diligence might have prevented the
damages done, Spain will be held liable in
that case.
f. This commission will take judicial no.
tfce that the instruction in Cuba which re-
suited in Intervention by the United States
ana In war between Spain and the United
States, passed. from the first, beyond the
control of Spain and so continued until such
Intervention and war took place.
D. AS war between Spain and the insur-
gents existed In material sense, although
not state Of war in the international
sense, Spain was entitled to adopt such war
measures for the recovery of her authority
as are sanctioned by the rules and usages
or international warfare. If, however, 1t be
nd l.,
that the acts Of the Spanish authorities or
soldiers were contrary to such rules and
usages, Spain will be held liable in that
case.
that the treaty Of 1795 and the protocol of
1877 were In full force and effect during The
fnsurrectfon in Cuba; and they will he an
piled In deciding cases properly falling
within their provisions.
Further Arguments Suggested.
As, a matter Of practice the commission
suggests that in order to avoid motions for
more specific statements Of fact and conse-
quent delay. the special facts relied on 20
bring claims within the principles OF al
lowance which have been stated should be
fully set forth In the petitions or amend
ments thereof. After demurrers are over
ruled such motions for more specific state
ments may be made In accordance with rule
as amended and the decisions of April
IL and May 10, 1902, contained in orders
numbered 155 and 1853. in case No. $50 Of
Elizabeth Merz.
The commission orders a further argu-
ment OF the question whether the recon
centration orders were legitimate acts of
war, and what results therefrom or from
other military orders made Spain liable for
damages, actual and direct and not remote
or prospective, to citizens Of the United
States; also a further argument of the
question of the construction and application
to L1p~
treaty Of 1895 and the protocol of 1871
Mr.. Maury Dissents.
Mr.: Commissioner Maury makes the fol-
lowing statement of dissent:
In disposing Of the demurrers in these
cases 1 have considered in connection with
the petitions demurred to certain extra
neous facts officially known to us, for the
purpose of Identifying the subject matter
with Spain was intended to operate, and
have reached the conclusion that by the
phrase "all claims for indemnity" in the
article. the high contracting parties intend
ed to include all losses and Injuries to the
persons or property Of our citizens result
ing from the late instruction In Cuba, the
conditions of which our government.
through its executive department, declared
to be abhorrent and shocking to the moral
sense Of the people of the United States
and disgrace to Christian civilization,
presenting the spectacle Of "a fertile ter
rftory wasted by fire and sword and given
over to desolation and famine" where IAN
archy. lawlessness and terrorism were
rampant" and where soldiers of Spain and
the insurgents were alike engaged in
spreading ruin and desolation. making no
discrimination between enemies and neu.
trails" and utterly destroying American in
vestments' and utterly impoverishing
great numbers Of American citizens"
In my view the propositions of law num-
bered one to five. inclusive, on which a
majority Of my brethren have agreed, If
correct. are abstract and hardly applicable
to the conditions that characterized the
late Instruction in Cuba. and go far to de-
feat the object of article of the treaty,
by establishing restrictions and qualifica-
tions as to the liability Of the United
have been in the minds of the parties when
the treaty was signed. I must therefore
withhold assent from the propositions in
question.
An opinion In support of these conelu-
sions has been prepared and will be filed at
the proper time.
Commissioner Chambers Position.
Commissioner Chambers also dissents, his
position being as follows:
This being a national court, although
charged with the principles of international
law to a subject matter lying beyond the
geographical limits Of the United States,
is bouLd. in its Interpretation of those prin-
ciples. by the decisions Of the Supreme
Court
The status of a government in reference
to foreign affairs-such, for instance as the
conditions that existed in Cuba between
February. 1896 and April. 1898, is deter
mined by what the executive department
refuses to do, as well as by its affirmative
movements. And in the employment Of ju-
dicial knowledge we are bound to know
what the status Of this government was
The political department Of the govern
ment having determined that the struggle
in Cuba was not war in the legal or in
ternational sense, and that even as an in
surrection 1t was not conducted according
to civilized methods; and having declined
to recognize the rebels as belligerents for
the reason, among others, that by so doing
American citizens would be deprived Of the
right to claim indemnity of Spain for in
juries and losses. this court following the
authority of the Supreme Court, cannot
otherwise determine.
Therefore 1t cannot be assumed on de-
murrer that the destruction of property of
an American citizen by the Spanish troops
was one of those necessary incidents of
war which relieved the destroyer from liza
bility, and the burden Is upon the defend
ant to prove that, the destruction was nee
essary and justifiable according to the rules
of civilized warfare.
Prima facie nation Is responsible for all
acts or omissions taking place within its
territory by which the citizens of another
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