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"Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces." This, of course, embraces all armed combatants thus taken, and no further provision was required as to them; and no other provision would have been made, but that there were still other classes of prisoners not yet provided for, and for whom provision was made in Article VI, paragraphs 2 and 3, the first of which provides that Reciprocally, the United States will release all persons made prisoners of war by the American forces," "and will endeavor to obtain the release of all Spanish prisoners in the hands of the insurgents," and paragraph 3 provides for the return to Spain of all such prisoners as are thus released. Here are two classes of persons. The first are combatants, and clearly embrace all combatants who are here provided for. The second are as clearly persons other than combatants, and yet all are "prisoners of war" and are so described.

Now, if there were any soldiers or armed combatants thus taken and still held, not provided for in Article V, paragraph 1, they are included in Article VI. But the provisions of this article go also much further, and embrace "all persons made prisoners of war by the American forces," whether combatants or not. The fact that this provision is in an article separate and different from that providing for soldiers, and the change to a broader phraseology clearly express a broader meaning, and clearly show an intention to embrace persons other than combatants, and to include "all persons made prisoners of war," whether combatants or not. It also clearly implies that the term "prisoners of war" was not intended to be restricted to actual combatants. This is further manifest from the stipulation that the United States will "undertake to obtain the release of all Spanish prisoners in the hands of the insurgents," without reference to whether they are combatants or not. Indeed, it is quite clear that the provisions of the treaty in this respect, embrace non-combatant prisoners as well as soldiers.

This construction would be aided, if it were necessary, by the fact that it is difficult to perceive why a distinction should be made between different kinds of prisoners, based upon any real or supposed difference between a technical

prisoner of war and any other prisoner taken during war, and because of, on account of, and in the prosecution of war; and is the more readily adopted because the United States can afford and is disposed to adopt a liberal construction.

I am, therefore, of opinion that the treaty of Paris contemplates and provides for the repatriation by the United States of all prisoners captured and held by it, or held and released by the insurgents-soldiers or civilians, men, women, and children-and whether their detention was originally voluntary as to them or otherwise.

I do not consider the question whether, when in a foreign land, an officer or soldier is taken prisoner, his wife and minor children with him there, might not, under such a liberal construction of this treaty as the United States might well adopt, be considered as constructively prisoners also; or whether, on the other hand, it was intended that the officer or soldier should be returned to Spain, leaving his wife and children in the Philippines, because, as will be seen, when speaking of the contract itself, it is not necessary.

But does the question of paying J. M. Ceballos & Co. depend upon the treaty stipulations above quoted? It appears that for the purpose of carrying out these provisions the War Department entered into a contract with J. M. Ceballos & Co. by which that company agreed and bound itself to receive on shipboard, in the Philippines, and transport "such number of prisoners of war and persons as may be designated by the Secretary of War, from the Philippine Islands to such port in Spain as may be designated by the Secretary of War, and to furnish to them subsistence while en route and on board the ships, and to deliver them on shore in Spain."

This company further agreed and was bound "to provide a sufficient number of steamships for the safe and comfortable transportation of the prisoners of war and such other persons as may be designated by the Secretary of War, with cabin accommodations for all officers, and third class or steerage accommodations, with ample galley accommodations,

space, and ventilation for the enlisted men and any other persons on board such ship."

And, for this service, the Secretary of War agrees to pay as follows:

"For the transportation, subsistence, and delivery on shore of each commissioned officer, the sum of two hundred and fifteen dollars ($215.00), and for each enlisted man, private soldier or other person designated by the Secretary of War for transportrtion, the sum of seventy-three dollars and seventy-five cents ($73.75). It is further agreed that the prisoners of war and all other persons to be transported shall be delivered by the United States on board the ship at such ports in the Philippine Islands as may be designated by the Secretary of War. On account

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of the number of officers, enlisted men, or other persons to be taken at the time of embarkation by a representative of the Government of the United States and a representative of the said J. M. Ceballos and Company, and payment to the said company shall be made upon the basis of the number of officers, enlisted men, and persons counted on such ship."

From all this it is entirely certain that, under this contract, J. M. Caballos & Co. had no control over or anything whatever to do with determining what persons, or how many should be thus received, subsisted, and transported, nor in determining the class of such persons, as soldiers or civilians, or in determining whether the persons so tendered for transportation came within any of the classes described in the treaty of Paris. The authorities of the United States only were authorized to decide this, and, with their decision, this steamship company had nothing to do, but was bound to receive and transport all who were thus tendered. And if that company has performed this service under this contract, the payment therefor can not be made to depend upon the wisdom or correctness of that decision.

Assuming that the Secretary of War was authorized to make a contract for the, return to Spain of the persons referred to in the Treaty of Paris, and, under that authority, made the contract in question here, and that this company has in good faith performed its part of it, the payment

therefor can not be affected by the fact, if it be so, that the agent of the United States, the Secretary of War, or his subordinates exceeded his authority by tendering for transportation, some persons also who, as afterwards decided, did not come within the purview of that treaty. The United States had the right to adopt, as against itself, as liberal a construction of that treaty as it chose; and it was neither the duty of, nor was it within the province of this steamship company, a mere carrier, to question the wisdom, propriety, or correctness of that construction. To say the least of it, it was questionable whether all the persons tendered and transported were not within the purview of the treaty, at least, under such a liberal construction as the United States might, under the circumstances, well adopt. And this was a question for the United States authorities and not for the carrier, who would have been guilty or might have been guilty of a breach of his contract, and would certainly have put the Government to great trouble and expense had the company stopped the whole business of embarkation by an inquiry as to the proper construction of the Spanish treaty, and an investigation as to whether all the persons tendered came within its provisions. Nor is it probable, under the circumstances, and with the force there at its command, that the United States would have tolerated any such impertinence or delay.

Nor can it be said that when referred to the treaty, the contract was ultra vires the Secretary of War, as being applicable to persons not within the purview of that treaty, and of which, said contractors were bound to take notice; for the contract, both in its preamble and terms, is for the transportation of prisoners only, and by no fair construction can it be made one for the transportation of other than prisoners, and was, therefore, within the treaty provisions. It is possible that persons who were not prisoners have been transported under it, but not because the contract provides for it. The contract, then, being legal and binding, the most that can be said, if even such be the fact, is that in the performance of that contract the United States authorities made a mistake and tendered for transportation, some per

sons not within the purview of the contract. But, as already said, it rested alone with the United States authorities to say who should be taken as prisoners, and as to which the carrier had neither voice, knowledge, nor means of knowledge, but was, by the express terms of his agreement, bound to carry all who were designated and tendered. When one contracting party requires of the other more than should be required, but which the other is bound to do, if required, and does it, it would be a novel rule which would permit the first party to refuse payment upon the ground that he ought not to have required so much.

Even if some persons were tendered, and therefore transported, who did not come within the purview of either the treaty or the contract, this did not affect the validity of the contract, which, rightly construed, is one for the transportation of prisoners only, but was merely an error in performance, and one for which the United States authorities alone were responsible.

As between these contracting parties, it rested alone with the United States to say whom it would send back to Spain, and, in doing so, to alone determine who were prisoners and who came within the purview of the treaty or the contract. And having done this by its authorized agents, and compelled the carrier to accept such decision and perform the service thus required, it does not lie with the United States now to refuse payment upon the ground that it or its agents were mistaken and required more than they should have done.

I am therefore of opinion, that the United States should pay J. M. Ceballos & Co. the contract price for all of the persons so tendered, transported, subsisted, and delivered.

The remainder of your questions has relation to the price to be paid on account of "other persons" than officers, enlisted men, soldiers.

The contract speaks of "officers," "enlisted men," "soldiers," "prisoners of war," and "other persons." As to the officers and enlisted men, soldiers, there appears to be no question. For the former $215 and for the latter $73.75 per capita is to be paid. I think the word "officers" may 19395-VOL 23-02-2