In compliance with the Royal order communicated
under date of the 23rd of October last, I have the honor to send to your
Excellency a copy of the previous record of investigations transmitted
by the office of this General Government, together with the report of the
office of the secretary, the remittance of which your Excellency requests.
The inquiry formulated by the politico-military governor of Sulu,
arising out of a resolution of tlie fishery board of the naval station
relative to the order prohibiting foreign subjects from engaging in the
pearl fisheries in the waters of the Sulu archipelago, did not call for a
speedy resolution nor a close study, it being sufficient to bring the matter
to the knowledge of your Excellency without entering deeply into the
question involved, in order not to prejudice the resolution of the same,
leaving to the supreme judgment of his Majesty^s Government the entire
appreciation of its reach and consequences, as the only authority ac-
quainted with the demands of our international relations and the influence
thereon of a decision in regard to a matter of such recognized importance
as is that of the interpretation to be given to Declaration I of the Sulu
Protocol of May 11th of 1877, contained in Article TV of the Protocol
between Spain, Germany, and Great Britain, signed in Madrid on March
7th, 1885 : — hence the brevity of the data contained in the communica-
tions above referred to and even the forbearance of this office from ex-,
pressing a concrete opinion (in any case, not called for) in regard to
a question as vital as it is complex. But circumstances, which are
always superior to every will and every calculation, now make prompt
action necessary, and not only forbid any delay, but impose upon this
General Government the duty of emitting an opinion which shall com-
plement the data furnished by the office of the secretary of the same,
which data were less extensive and explicit than they would certainly
have been had not a respect for the free initiative of the Supreme Govern-
ment acted as a restraining influence. The incident arising out of the
presence in the city of Jolo of the British subject Mr. H. W. Dalton,
from Sandakan, awaiting the arrival of a fleet of boats of light tonnage
belonging to the English concern, The Pearling and Trading Co. Ltd./
of which he is the representative for the purpose of using the same in the
mother-of-pearl shell fishery, which fact 1 communicated to your Ex-
cellency by cablegram on the 3rd of the current month, makes more
urgent the sovereign decision in regard to the concrete point as to whether
foreign subjects are allowed to engage in the pearl fishery in the
archipelago of Sulu.
In the judgment of this office (which has, on various occasions, inspired
only by a regard for the best interests of the nation, expressed the
opinion that the Sulu Protocol is too prejudicial to the said interests to
permit of the points of doubtful interpretation in the same being in-
terpreted liberally), the point in regard to the right of fishery which
foreigners lay claim to exercise freely in waters under the jurisdiction of
our sovereignty, is not a doubtful one at all, but is entirely contrary to
.their pretensions. The claims are founded, according to the statements
of those who agree with the views which they involve, in Declaration I
of the said Protocol of 1877, reproduced in the Protocol of 1885 and
in that signed in Rome in the same year, relating to the Caroline and
Pelew Archipelagoes.
This declaration runs as follows — ratified by Article IV of the second
of these important diplomatic documents :
The direct commerce and traxle of boats and subjects of Great Britain, of
Germany, and of the other powers, is declared, and shall be, absolutely free in
the archipelago of Sulu and in all its parts, as also the right of fishery, without
prejudice to the rights recognized as belonging to Spain in the present Protocol,
in conformity with the following declarations • * *.
III. At points occupied, by Spain in the archipelago of Sulu, the Spanish
Government may establish imposts, and sanitary and other regulations of whatever
kind, during the effective occupation of the said points • » ♦.
From the transcript it is evident that Spain may regulate the exercise
of the right of traffic and commerce, not with the purpose of restricting,
and much less of denying, the principle of commercial liberty recognized
in Declaration I, but with that of conditioning the exercise of that
right in such a way that her own rights as a sovereign nation shall not be
infringed. And what she may do in regard to mercantile trade, with
greater reason she may and should do in everything referring to the
right of fishery, a right which is declared only in general terms, and one
of which the protocol does not treat except in making the affirmation of
the principle itself, whereas in regard to commerce, it descends to minute
details.
And this could not be otherwise, for anything else would be equivalent
to impairing the sovereignty of Spain; and this, in an agreement in
which this sovereignty is openly recognized and proclaimed, would pre
suppose a contradiction so palpable and absurd that it is not worth while
even to discuss it.
Spain, as a sovereign and independent state, holds and exercises her
sovereignty not only in her territories and on the coasts of the same, but
in her jurisdictional waters, and can, therefore, regulate the exercise
therein of any right granted to foreign subjects, and may, even, in the
exercise of her sovereignty, prohibit the enjoyment of such right alto-
. gether ; this is an indisputable principle of international law, though there
is nothing to prevent a state from limiting the same in favor of another
or other states ; but it is a sine qua non condition to this that there shall
be an express and clear declaration of her will on this point, and no one
can reasonably affirm that Spain has made in the Sulu Protocols,
neither in that of 1877, nor in that of 1885, a total or partial surrender
of this right in regard to that of fishery ; there is, it is true, a declaration
in general terms that the fisheries are absolutely free in the archipelago
of Sulu; but this absoluteness of the principle is immediately qualified
by the condition that it shall be without prejudice to the rights recognized
as belonging to Spain in the protocol, and it has already been pointed out
that one of these rights — the principal one and that which contains all
the others, the right of sovereignty — is proclaimed and recognized at
the head of the agreement. Outside this declaration in general terms,
there will not be found in all the protocol a provision or regulation
refeiTing to the exercise of the right of fishery and much less a concrete
and express declaration on the part of Spain that she will permit the
exercise thereof freely on her coasts and in her territorial waters. To
permit of this a concrete, clear, and definite declaration would be neces-
sary, such as is to be found in the Morocco Treaty, signed on November
30, 1861, Article 57 of which establishes qualifiedly "That Spanish sub-
jects shall have a right to fish along the coasts of the Moroccan Empire;"
and even so, in Article 60 of the same treaty, it is stipulated that, in
order to facilitate the coral fishery, in which the Spaniards engage on the
coast of Morocco, fishers shall pay the sura of 150 Spanish dollars for
each coral fishing boat, and that through the representative of Spain they
shall request permission from the minister of foreign affairs of His
Majesty the Sultan who shall issue the necessary authorization.
From which it may be seen that even in the case of declarations in
regard to the right of fishery which are concrete, clear and definite,
there is needed, for the free exercise of the same, something more than
a declaration in general terms, such as is that contained in the Sulu
Protocol of 1877.
Furthermore, it is always customary in international agreements which
refer to fishery rights to lay down regulations and provisions which shall
regulate the exercise of such rights, as is proved by a multitude of agree-
menti*, among which are : that already cited of Morocco, that of February
18th, 1886, between Spain and France regarding the fishery and naviga-
tion of the Bidasoa, in which the right of oyster fishing is restricted, its
absolute prohibition being made possible; as also that of 1889 ratifying
the preceding one, the Portuguese convention of March 27th of 1893 and
the coast police and fisliery regulations; as wfell as that of August 22nd
of 1891, in regard to the fisheries in the waters of the Algarbes, etc.;
all of which is well known by the illustrious Government of His Majesty,
and attention is called to it here only in support of the opinion main-
tained, namely, that the riglit to authorize, condition, restrict, and even
prohibit the engagement in fishery on its coast and in its jurisdictional
waters is inherent in the sovereignty of an independent state; and if it
has this right in regard to fisheries in general, with greater reason must
it preserve and exercise the same in regard to oyster fisheries, by reason of
the changes which may be produced in the sea bed, and even for the
purpose of preserving the breeding grounds of the pretdous pearl-shell
mollusk, the AvicuJa ^lanjaritifera, the banks being the property of tlie
nation, and like all its territory, inalienable and non-pres<*riptible ; both
so that they shall not be exhausted and that tlieir exploitation may be
reserved for the national industry.
From the preceding, written witb less detail than would have been
the case had the pressure of time permitted, it may easily be inferred
that, in the opinion of this General Government, Spain in spite of
Declaration I of the Sulu Protocol — perhaps it would be more correct to
say, by virtue of that very declaration, the terms of which really de-
termine the meaning of Declaration III and Article I of the Treaty —
preserves intact her right as a sovereign nation to restrict, condition,
and even prohibit engagement in the oyster fishery on her coasts and in
her jurisdictional waters, without further limitations than those which
she may deem expedient to self -impose.
Admitting her rights as a sovereign state, there arises a question of
a political nature, which the circumstances above indicated convert into
a problem demanding an early resolution.
To what extent should Spain exercise this right?
On this point, the views of the General Government will be expressed
as concisely as possible and with the soberness demanded both by the
respect due to the high prerogatives of the public authorities and by an
ignorance of many of the elements which enter into the question, with-
out a knowledge of which it is difficult to determine to what extent it is
expedient to restrict the exercise of the right to engage in the oyster
fisheries which foreign subjects claim to exercise freely in the Sulu
archipelago, a pretension which this General Government regards as
entirely opposed to the rights of Spain and her moral and material in-
terests in the Far East. Our prestige with the Malay races here, our
moral influence over these semi-civilized Mohammedan people, who rec
ognize no right or supremacy but that of miglit, demand that Spain,
as a colonizing nation, shall maintain the integrity of lier sovereignty
and shall not seem to be subjugated to the will of other Powers, as
would appear if, in her teixitories and on her coasts, with the knowledge
and permission of her authorities and of her war sliips, and without even
heeding them, foreigners should perform acts which, like that of engaging
in the mother-of-pearl fishery, being contrary to our material interests,
cannot be carried out without paying tribute to the Moro sultans and
chieftains themselves.
There is no doubt that the need for preserving cordial relations with
Germany and England and for maintaining the most perfect under-
standing between the European powers in anticipation of some concerted
action in regard to the Empires of China and of Japan, which will
render necessary in the future the Expansive policy of the latter towards
the south, as well as the hegemony claimed by the latter in the Orient,
counsel a circumspect international policy and a moderate exercise of
our sovereign rights in the archipelago of Sulu; and for this reason,
perhaps it would be inexpedient to forbid the right of fishery to foreign
subjects, as such action would certainly give rise to diplomatic questions
and remonstrances, which should be avoided at any cost; but this Gen-
eral Government deems it indispensable to condition and regulate the
exercise of this fishery right, especially in so far as it relates to the
pearl-producing oyster, the exploitation of which should be governed by
considerations of our prestige and of the advantage and benefit of our
material interests. Supported therefore by our right of sovereignty, by
international practice, and by the terms of Declarations I and III of
the Protocol of 1877 and of Articles I and IV of that of 1885, there
should be issued certain coast police and fishery regulations for the Sulu
archipelago, laying down clearly the relations which are to exist between
the Spanish -Government and foreign subjects engaging in the fishery
industries along our coasts and in our jurisdictional waters; which in-
dustries should not be engaged in, especially in the case of the oyster,
without the necessary authorization of the Spanish authorities, and after
the payment of the corresponding industrial patent or license, or of the
dues which it may be deemed expedient to exact.
Much more might be said in regard to this important question, as
unexpectedly presented as it is urgent of resolution, given the conditions
created by the claim of the British subject Mr. H. W. Dalton ; and this
General Government appreciates fully the deficiency of its suggestions,
which will be advantageously supplemented by the great wisdom of his
Majesty's Government, its exalted patriotism, and the solicitous care that
it gives to everything touching the high interests of the nation, by
which elevated sentiments they are inspired.