E I 0 It T S ON THE ILAW\ OF C IIL G(OVIERNIME1T IN TERRITORY SUBJECT TO A1110I'TAIRY OCCt'lATION BY THE AIIITAIY FORCES OF THE INITE'I) SI'AIES. I-IO{:N. lLItU 1 )T, SECIRETARY OF '\ VAkl ( II XLES: 1. IK. I-(OOr ATr, LAW OFFICER, BUREAU 01' NSULAR AFFAIRS, W.A\ I ): I'. it'. EN'r. 1'1'ILIsHI1:1) BY ()111'lt (F THill, Sl ('IIETAKIY OF WANI. THIRD EDITION. BUREAU OF INSULAR AFFAIRS, \\A L)DEPARTrENT. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1903. Ii I AVAIR DEPAIRTMENT'I, WaTt.shfintont, Octol,'.,- 10)1. I)EAR STI: Your rleports upon the various questions of law: arising luringl' tlhe( ililitiary occupaltion of the islands ceded or yiel(dedl by Slpain tunder the treaty of Plaris. have( been of such vallu to 1me in dccidinig tle lqiestions treated th'at I have determin(ed to llhave thei(l printed for the tuse of tll(e officers colncerned in the g'overnmen(t of the il:ands. W ill Vyou please to p1repare themI for p1)ulic(ation as oo()()n as may be convenClient? Very truly votil's, EL,ImII1 ROOi)T, li'n. A/,'//.f 1i(/i. IIOn. CHARLES 1E. AMAGOON.,L: i.f ),,,. I)o ' o/, I, t,, -.tA '" IJf//' D],1wit,, It sb.'1,'t1,,o,. I). (. NOTE. Il oilter to prevent llisunllll rstlancli. atteltio1 is directed to tlhe fac.t tliat tle relorts (f the law ofliceir of the liisiil,f J1nsular 1Affairs are not judicial declisionls. The aultlhorit to (leclare tlie determlination of tlie War l)epartmllet as o o tile questions d(iscussed( in said repl)rts is retainedl anid exercisced 1!v t le Secretary of War. These reports were p)replar(ed for his use anl information in arriving at s1'ch determination andl are now publlishedl l(v his directionl. Tlie writer sinlcerel ll hopes tlie pul)licationl may b e of service to tlie conlstantly increasinlg iiuiii)er of persons wh\-se interest is awakened or whose rilghts arc inv\,lved il tlie p.rpositiolis discussed. Lm(' O(i./n' (. ]irli(s f In t/n A ', tirs, 11,,' 4,lp((tt 'tlt, 1 is/inylt/t, J). C. * TABLE OF CONTENTS. Page. The powers, functions, and (duties -,f the lmilitary governients mailntaineld 1y the Unitedl States in tlhe islands lately ce(le(l and relilnquisli(ed byl, the Governm ent of Spain.............. ----. -—..-............................ 11 Le gal status of tlhe territory an(l inhabitants of the islands acquiredl ) thle United States (lirillg tlee war with Spain, consi(lered withl reference to the territorial bounlaries, tile Constitution, an(l laws of the it nited States..... 37 Incidents in the history of tlhe lTnited States involving the doctrine that tlit (onstitution anl laws of the United States extend, (., propr;Io ri,or'e, over newly acquired territory, upon tihe acquisition b}eing coiiipletel........... 121 The charge of " ilperialisni " preferred against Presi(lent Jefferson...... 121 The dlebate on tlhe bill providing a temporary c(ivil governllent for the Fhl ri(las -..... --- —-................ — --------—................ 137 The controversy over saild (octrine between Alndrew Jackson and Jud(ge Fronmentinl......-............................................... 138 Tihe (lelate in the Senate of the TUnited States in 1849, led ly Webster and Calhoun, on the prop)ositions involved in the two questions — 1. Do the Constitution an(l tlhe body of laws of the United States, e.r proporio rigore, extend over territory newly acquireld by the lU. ite(l States?...-........................................ 140 2. Can the Constitution be extended( over territory newly acquirel by the lUlited States, either e.?; proprio rigore or by act of Congress, ip.. aie creation of a State in said territory by authorize(l action of the inhabitants? --—. —...................................... 140 The- proceedings in Congress during the passage of the b}ill provi(lilng for tlhe payment of the )purchase price of Alaska, wherein the House required tlhe Senate and Executive to recognize and respect the right of the HIousle to i)articipate in the determination of the (lqestion, whether or not a cession of foreign territory to the United States shall be assented to by the sovereign people of the United States.. --- —. ---............ 151 Tlhe position taken by the legislative and executive b)ranches of this Government respecting territory outside of the States of the Union and the relation sustaine(d by such territory to the tariff laws and statutes of similar character ---—................................. 15 Comxparison of the constitutional re(uireiments for uniiforin tariff laws with the requirements as to uniform laws on internal revenue andl (direct taxes- 171 Report on the right of Spain to accept a renewal of allegiance to it by indivildual inhabitants of the territories acquired by the United States as a result of the Spanish-American war, and to reinstate such individuals in Spanish citizenship.................................................. 173 *In re claim of the Manila Railway Company, Limited, for payment by the United States of interest on the capital invested in the railway owned and operated by said company, pursuant to guaranty of said interest by the Spanish G(overnment --.........1..................................... 1 77 5 Page. Ill.e petition of the Countess of Buena Vista for relief from a certain order of the Military Governor of Cuba, and the claim of Dr. lon Gustavo Gallet Duplessis for similar relief and indemnity --—.-.' ----' —. ---.... --- 194 The right of tile government of the Philippine Islands, instituted 1by the President of tile TUnited States, to regulate commercial intercouse with the archipelago; and, as an incident to such regulation, to impose import and export duties --- —--- ---- --- ---- ------ 210 Report on objections made by the representatives of the Hongkong and Shanghai Banking Corporation to Act No. 53 of the Philippine Conlmission, entitled '"A.n Act to prevent discrimination against the money of the United States lby banking institutions' ' --- —-—.......... -—. --- ——. --- —... 255 In re order of Major-General Otis requiring Smlith, Bell & Co., a banking house at Manila, to turn over to the American authorities $100,000, held by said house as the property of tlhe insurgent forces in the I'hilippines --—.. 261 The confiscation of l)rivate property of enemies in war.-..........-....-. 264 In the matter of transmitting over the telegraph lines operated by the military goverlnent of Cuba messages received from or destined for points in the United States, via Haiti and Santiago (le Cuba...-.......... --- —..... 281 In the matter of complaint made by the owner of the British vessel, TWill o' the lI'isp, because of certain restrictions placed by the United States upon trade with the Sulu Islands, contrary, it is alleged, to the protocol of March 11, 1877, by tile representatives of (reat Britain, Germany, and Spain; also tile demand of said owners for $10,000 for damages occasioned by the enforcemnent of said restrictions....... -. —. —...-. ----. ---. —. --- —- 302 Tlhe protection by the governmeint of civil affairs in Cuba and the Phililppines of tradle-marks registered prior to the treaty of Paris (1898) in the International Registry at the Bureau of thle l'ion for the Protection of Industrial Property, Berne, Switzerland, under the internatiomnal agreement concluded April 14, 1891, to whiclh Spain was a party ----—. —.............. ----... 305 In re note of tlhe imperial ambassad(or of (Gernmany at this capital to the Secretary of State, complainlig of the regulations and restrictionll '. 1 with the illhabitantst of tlIe Sulu Islands, ilmpose(d by tie military go(vernmlent of tlhe lPhilippin e Archipelago;- also tle correspondence between tile llitd(l States consull-genleral at Singapore an(l tlle Imlperial conlsul of (Germanyl at tllat Tport, regardingl tile c(losing of tle ports of tihe Sulut Archil)elago to foreign commelllrce,,y! order of the com((mander of tle Unite( States mnilitarv forces ill the lPhilippinei Islands.....-..-...... ----. --- —---.. —........ 316 In re claims lmade against tile United States by reason of tile military operationsy, encamilmlent of trool)p, conl(luc(t {of s(olliers, etc., ill Porto Rico, Cuba, Ihawaii, anll thle 'Phili)ppines.-.-.-. --- —..-. —. --- —-----. ---.. —. 338 Alining claims and appurtenant privileges inl Cuba, Porto Rico, and the Philipl)inies --—..... —...................... — -—. --- —- -—. —. --- —-. --- — 351 The right of municipalities in Cula to grant permission to railroad companies to cross or occupy hlighways, streets, alnd lroperty bolonging to said municipalities, and tile proce(dure to be followed in conferring such privilege -.. 374 Report on the draft of a lproposed order of the military governlmenlt authorizing tlle organization of railroad conpanies in Cuba andl thle construction, maintenance, and operation of railroads in that island.. —......... ---. —.-.- 391 In the mlatter of an inquiry from the State Department r:garding thle claiml of Merryw-eather & Sons, London, England, for damages occasioned by tlle refusal of tlie city of Manila to permit the further execution of an alleged contract for supplyiilg certain fire aplparatus.............................. 407 Page. The claim for $30,000 presented by the Amierican Mail Steam-iship Company for s.ervices rendleredl the Unitedl States in towving the Unitedl States Arimy transport McP/',.eroo to. ilampltoin RoaIs -----------------— 414 The salary of the g-overno(r-general of Cuba anl its payment out of the revlenules of (uba --- —---------------------------- 422 The statute prohibiting officers of the Army from holding civil offices --- —-431 Application of the purclhasers of the San Juan and Rtio Piedras Tramway for confirmation of sale andl transfer of concession, an(l for certain privileges desiredl upon comjdipetiou. of transfer ------------------— 432 InI time matter of annulling the alleged title to the, island of Caja de -Muertos andl time 1hosphate deposits therein, gramited by (eneral H-enry to Mfiguel Porrata 1)oria in 1899 --- —---------------------- 448 InI re contract with Woolf et al. regarding the nmanufacture and use of electrozone for public purposes in lHalana, Cuba --- —----------— 451 In thme mnatter of the, claini of Antonio Alvarez -Nava v Lobo for the sum of $30,000 dlamages for being deprived of the office of notary, held by him in San Juan, J)* li., under the Spanish r'gime --- —-- --------— 454 Mem-oranduni on the questions1. Do the municipalities of Porto Rico, under the condlitions now existing iu time island, possess the right to contract loans and issue 1)0nd(1 for pub~lic improvemnenta.i --- —----------------— 457 2. What method or p~rocedure miust lbe followed in exercising said rightL 4,57 InI re granting mnunicip~al franchises by the municipalities of Porto Rico- -...403 In the matter of the application of Fermuin y 'S'agardia, an inhabitant of Porto Rico, for eomp)nensation for (damnages occa~sioned1 by his p~rop~ertv being stolen, injurcIl, and destroyed 1v robbers infestin th~e localitv of his residence -- 471 In the matter of the administration of the estate of Ramnon MNarti yv Buguet, a native of Tarragona, Spain, wAho (liedl at B~eaz, Santa Clara, without leaving a will --- —-----------------------------— 473 In me estate of Jacol) iDubuqjue, (leceasedl, an(1 time adlministration thereof by the military authorities of the, United States at Cienfuegos, Cuba ----- - 47-8 In the miatter of the application of Sami Wing, a Chines ecat domuiciled in P~rovidJence, 1R. 1., for an. order by the Secretarv of War, p~ermitting himi to enter the port of 'Manila, 1'. I., and thence proceed to Iloilo, to there engage in. lbusiness as a merchant --- —---------------— 482 Inm the matter of the application of the board of harbor works of P~once, P'. 1-1., to the GJovernmuent of the, United States, asking for the assistance of the Goivernmnent of the United States in. securing the, paymecnt of a claini asserted byv said boarml of harbor wvorks of P~once against the, Government. of Spain for the sumi of 27,503.06 pe-) -------------------------— 484 In me aiplication to the P)resident, of Juan 13. Calero, to s-et asidle andl annul certain. judgmnents,_~ rendered by the courts of Cuba prior to Am-erican ocenpatim nu of the island~~ — - - - - - -- - - - - - - - - -- - - - - - - - - 48s6 Report on. the application to the Secretary of War, made by, Antonio Diaz I lerrera, an inhabitant of Cuba, requesting the Secretary of War to annul the final decree of the jui(lge of San Antonio de los Baitos made May 25, 1.897-. 487 In the matter of the application of Framuk 1-1. Griswold, Charles Bigelow, Her'bert S. Griswold, and Joseph J. _McNally, for articles of incorporation emeating a corp~oration under and by v-irtue of the laws of Porto Rico; if such ecorpf)(ration can not be created under the laws of Porto Rico, as existimg, then s-aiml applicants desire, to become incorporated as a Porto Rico corporation un( ler and by virtue of the Federal authority of the United States --— 490 8 Page. In the nlatter of the application of Ranlol Valdez for a revocable license to occup)y and utilize the water power of la Plata River at Comerio Falls. I'orto Rico.-......... ---- ------------------------------------------ 4.95 ~'Memorandum respecting the exercise of the power to pardon under tile nmilitary government maintained in New ]Mexico; also the r(rders of the Illilitary governinent t of Cuba relating to the exercise of the power to paralo under that government -..............................501 In the matter of the commutation, by the courts of (Cubla, o)f the sentences heretofore imposed by said courts on persons conivicted( of crininal offen.ses c(oinminitted in Cuba when the c(onvicte(l )ersoins are serving out said sentences in prisons situate(l in territory now sulbject to the sovereignt-y,f Si ain. -. --- —------------------------------------------------------ 507 In, the matter of the contract l)etween the unite(l railways of the Havalna ainl Rela Warehouses, Lilnitedl, and( the Cuban and Pan-Amlierican Elxpress (!o lrnpan - --- --------------------------------------------------------- 511 In the matter of the protest of M1. F. Viondli, an inhabitant of the islan(l (if Cuba andl an attorney at law, against the order of the mnilitary governor if Cuba datedl July 29, 1899, bleinig No. 124, -Iea(l(luarters Division of Cuba 514 The disposition to be nla(le of certain effects of MTortilnier Cook, (leceasedl, now in thle possessionl of thle mnilitary authorities of the l'nite(l States in tile Phililppines —.. —............................................. 519 Extrad(ition of fugitives from justice lwho have taken refuge in Cuba under military governmlent -. --- —-------------------------------------------- 523 In re clainm of Don Jos( Cagigas against the military government of Cubla for damages to the tugr (O bttlilt by a collision with the (TGovernment bloat N\rciso De?,lofet in 11abaiina H-Tarbor..-....................................... 526 In re claim, of the Elastern Extension Telegraph Company for payment by the United States of sulbsidy pIrovide(l for by the terms of thle concession granted l)y the Governmlent of Spain -. --- —-------------------------------- 529 Claim of Vicente and Jos6 Usera relating to an alleged Spanish concession f(-,r the construction of a tramwn-ay on the putblic highway from the city of Ponce, P. R., to thle Barrio (le la AMarina- ------------------------------ 5:31 In the Inatter of the colltract for a market house at Sancti Spiritus, Cuba, and the rights thereunder of P'rimitivo Gutierrez, a Spanish subject ------------ 534 Report on the right of the Inunicipality of Habana to exercise over property owne(l by said( city, the rights w-hich lby law belong to the peaceful possession of property. --- —---------------------------------------- 541 Report on the question of inserting a charge of "conspiracy " in the crinlinal comnplaints against Neely and Rathbone; an(l the inadvisability of joininlg both defendants in one complaint which shall include all the charges.- - 545 Report as to the ownership and right to dlispqose of vessels disabled and sunk in the coastal waters of Culba by the naval forces of the United States during the Spanish-Amnerican war. --- —-------.-.. ---. --- —--- 555 In re request of the military government of Cul)a that the War Departnenlt request the State Department to apply to the (Government of Spain for tIle release from prison of Eulogio Idulla Saez -.5........ --- ——. --- —-----... 62 In re note from the Spanish mninister at this capital to the Secretary of State suggesting the conclusion of an agreement between the (-;overnment of the UInited States and the Government of Spain in respect of the disposition (,f the stationary batteries, war material, etc., left by the forces of Spain in Cul a and Porto Rico, upon the failure of the mixed evacuation commissions to agree as to the title and final disposition thereof..-. --- — —.............. 566 The concession to canalize the Alatadero River fromn the Cristina Bridge to the Bay of Atares -.... --- —-- 571 Page. The grant of franchises by Spanish officials in Cuba -after the signing of the iprotocol of Akugust 12, 1898 -------— 9 --- —---------- Construction to be given the Congressional enactment approved M.arch 2, 1901, relating to the pu blic, lands, andi timber in the. Philippines --- —----- 604 In re claim of Mlessrs. Sobrinos dle iHerrera (nephews of Iferrera) for payment Of dlamages occasioned lby the seizure o)f the steamer Jo. hu. in the harbor i)f Santiago (le Cuba on or almout July 17, 1898, 1y the military% forces o)f the 1:nited States --- - - - - - - - - - - - - -- - - - - - - - - - - - --- -61 5 Report on the (duty collect~ible on the wreck of a steamier brought into Porto Rico andl there sold while that islandI wa~s under nnlit~arv -overnmeiit ---- 6 1 The right to dispose of the, moneys found in the 'Spanish treasuries in 'Manila an(1 seizeul 1w the military forces o)f the United States whlen that citv wats caputured ---------------------— l --- —--- 6 21 In re claim of Don J. Akntonio Moinpo) y Ph~i for the return o)f an alleged excess of duties amounting to $5,624.15 imposed at Manila on a shiimiient. of whine landed at. that port --- —----------------------— 625' In the matter, of the application of the, Western Railwaly of 1ialuana, Limited, for peti-mission to exercise rights alleged to have beeni secured by a concession for extension of the railway granted1 by the Spanish military authorities in Cuba., -November 24, 1898 -6: --- —---------— 0 --- — In re claim- made 1wv the CGovernmnent of Spain, that puaragraphi 14 of G'eneral Orders, No. 19, issued by- the niilitarv governor of Porto Rico, is in v-iolation)I of Article XII of the treaty! of peace between the l7nited States and Spain. 646(3 Report on proposed judlicial order 1y the mmiilitarN governmient of Po(rto Rico) respecting ''the payment of dlebts contractedi in 'Mexican money'' - 6.... I48 In re revocable license, heretofore o)rdered issued to Charles B1. Gaskill et. al., to construct and operate an electric railway- on certain streets in the city - of 1~oceP..,an( frm ai(1 city across the Portuguese River to Playa- 65 Comiparison betweemi the laws of the United States agaimist treason, seditionl, etc., amid the provisions of Act. -No. 292 o)f the Philippine Commission ----i-655 Insurrecti(oni against the mmiiitary goovernmenit in New Mexico anol California, 1847 amid 1848 ------------------------------ 689 a REPO__RTS ON THE LAW OF CIVIL GOVERNMENT IN TERRITORY SUBJECT TO MILITARY OCCUPATION BY THE MILITARY FORCES OF THE UNITED STATES. [Case No. 1102, Division of Insular Affairs. Sulbnitted October 19, 1899.] THE POWERS, FUNCTIONS, AND DUTIES OF THE MILITARY GOVERNMENTS MAINTAINED BY THE UNITED STATES IN THE ISLANDS LATELY CEDED AND RELINQUISHED BY THE GOVERNMENT OF SPAIN., Military governments, resulting from nil itary occuipation., are in - tended to perform two services: (1) Promote tile military operations of tile. oec'upyincg ar-my; (2) p~reserve tile safety of society. (Ex parte Milligan, 4 Wall., 127.) The governmients flow being ilaintained 1y the United States in sai hisads were instituted duiring- a wvar, by the exercise of an undouibted belligerent right in discharge of a na"tional. obligation imi posedl by international law, namely, an invader having overthrowni the existAing) government must provide; another- one. The Bru-tssels Project of faim International D~eclartation concerniinge the Lawvs and Cutvoms of Wlar, recites: Amn'. 2. The authority of the legal power being susp~endledl, anm] having actually 1)assed into the hands of the occupier, hie -shall take every step) iii his pmver~ to reestab~lislh andl secure, as far as possilble, pub~lic safety andI social order. (See also sec. 43", Recommendations o~f institute of International Law, Oxford "ession_, 1880.) Liebeic's Instruictions for t1ke Government of Armies of the United States in the Field (G. 0. 100. A. G. 0.. 18(-'3) provides as,- followvs: I.- A place, (listrict or country occupied by anl enemyi stzands, inl conisequenice o..f thle occulpation, under time martial law of thle invading o)r occupying army.** Martial law% is thle immediate andI direct effect. and consequence of occupation or conq~uest. * * * 2. MNartical law dloes not cease (luring, the hostile occupation, except by special proclaitnation, ordered by the corinander hi chief, or hy special mention inl the treatv- of peace concluding the Avar, when the occupation of a place or territory confitines beyond the conclusion of peace as one of the conditions of the samle.*** See (General Order 101, A. (i. 0-., series 1898. 11 12 4. Martial law is simply military authority exercisedl in a;,i:ordance with the laws and usages of war. * * * 6. All c(ivil and penal law shall continue to take its usual course in tle eniemv's places and territories un(ler martial law, unless interrup)te(l or stop)pe(l by- orlter of the oc(cupIying military power; hut all the functions of thle hostile governmen-t-legislative, exe{utive, or administrative —whether of a general, provincial, or local character, cease un(ler martial law, or continue only with the salnction, or if (leemnedl necessary, the participation of the.occupier or inva(ler. 14. M\ilitary necessity, as understood by modern civilize(l nations, consists in the nlecessity of those measures which are in(ispensal)le for seculring the endls of the war, an(l which are.lawful according to thle m-o(lern law an(l usages of war. That the imilitary authorities of the United States are not prohibited by the Constitution or institutions of our' Govern'lent from miaintaining governiments under requisite conditions, has b}eell judicially determined l)y our Suprenle Court. (Cross et al. v. Harrison, 16; Itow., 1(4, 1(93; Leitensdorfer on. WVebb, 20 IHow., 176, 1'77.) As to the government established in California, the court say-: Thte governmlent, of which Colonel Mason was the executive, has its origin in the lawful exercise of a belligerent right over a conqueredl territory. It had been instituted Iduring the war by the colnmand of the I'resident of the United States. (16 How., 19:3.) As to the government instituted in New Mexico, the court say: Upon the acquisition, in the year 1846, by the armls of'the United States of the Territory of New Mlexico, the civil government of this Territory havinag been overthrown, the officer, General Kearney, holding possession for the United States in virtue of the power of conquest andl occupancy, and in obedience to the duty of maintaining the security of the inhabitants in their lersons and property, ordained, undler the sanction ancl authority of the United States, a provisional governmeint for the acquire(l country. (20 How., 1l76, 177.) AMilitary goNvernment is the dominion exercised by at belligerent power over invaded territory and the inhabitants thereof. Such a government performs its functions and d(ischarges its obligations by ANhat is knowll as martial law. Chief Justice Chase describes military goveI.rnment as.a form of military jurisdiction — to be exerc(ised in time of foreign war without the boundaries of the United States, or in tinie of rebellion and civil war within States or (listricts occupied( by rebel, treate(l as belligerents. (Ex parte Milligan, 4 Wall., 141.) In this case Chief Justice Chase defined maltial law as an ullthority called into action, when public necessity required it, in a locality ol district, not of an enemy's country, but of the United States. anc "ua/n. tCa.inn.l ad/eSi0on2 to tMhe.i (ttional Goveiw'ez"t. (4 'Wall., 142.) It will be seen that a military government takes the place of a suspended or destroyed soverei,(/nty, while martial law or, more properly.' martial rule, takes the place of certain governmental agencies whict for the time being are unable to cope with existing conditions in locality which remains subject to the sovereignty. 13 The occasionl of mlilitary goverImLnet is the expulsion of the sovereignty theretofore existing, which is usually accomlplished by a successful mlilittary inlasion. 'he occasion off Illartial rule is simply )l u ilic exilency which 1m11ayv arise ill tiie of war or peace. A mlilitary goverllnmell t, since it takes tlie plaice of a1 deposed sovereigonty. of llecessity continues until a peICrallnent sovereignty is:again establlishled il the territory. Mlartial rile 'ea'.ses when the dlistrict is Sluficielltl tranquil to permiit the ordinalry agncie s of governelnllt to cope with existilg conditions. Thle power of such g'overnment, in timle of war, is a liarg e anld extrlordinary onle, being sul)ject onlly to such conditionls tan(l restrictions 'as tlie laws of warI imllpos'e ipon it. As was said by) the United States Supreme Court, suc1h gove(ni'illg authority — may (1o, anything necessary to strengthen itself andl weaken the enemy. There is no limit ti t11le powers that 1mav he exerted ill such cases save thlose which are found in tlhe laws and usal res of war. * * In suclh cases the laws of war take thle place of tle C('institutiol alnd law-s of tlhe Ilnited States as applied in time of peace. (New Orleans,'. Steanship Co., 20 Wall.,..94.) C'ommnenTting on this view of the law, the Texas supreme court say: This lanllruare, stronll as it mlay seemi11, asserts a rule of international law, recognized as alllic'al le Ilrilng a state of war. (I)aniel v. IH-tclieson, <S6 Texas, l1.) Thait the 1poweri is lieas(ttllre(l id restricted only by tlhe laws of war, see Sa'rgleant. on the Const.. 3(30; 1 Kent's Corn.. 30(;; Flanders Expos. of C'onst.. 1G6. 1S4;: Little,. Barreme, 2 Cranch, 170; State v(. Fairfield, 13 ()hio St., '387. III ait(ien(t times gove(rntlmelts of this chlaracter were adtlinistered accordiig to the atcei)ted d(octrine. "The will of the conqttueror is the law of tlie (on(lquered." 'This toctrimle i- still recognized as as aw of nationsl. bl t Il:s Cbeen so mnodified by modern usage as to deprive it of its terrors. hen a1 army elngtagled itl acltul warfare drives out or destroys the formler sovereignty of a c'ountry, the laws createdl by thatt sovereignty and (epeident upon that sovereilgnty pass '\wy with it. There also passes ttaway the obligation of the inlhabitants, theretofore owi1ng allegiance to the deposed sovereigity,t to obey the will of said sovereigni. e.. its laws. Thereupon the necessity exists out of which arises martial rule. Martial rule, its exercised in anv- country by the conmlnnader of an in-vading armyi, is an element of the jus belli. It is incidental to a state of war and appertains to the law of nations. The comnnander of the occupying army rules the territory within his military jurisdiction, as necessity demands and prudence dictates, restrained by international law and obligations, the usages and laws of war, and the orders of his 14 superior officers of the government lie serves and represents. (Hansard's Parliamentary Debates, 3d series, vol. 95, p. 80; Op. Att'y Gen., vol. 8, p. 369; Regulations for U. S. Army, Art. VI, sec. 65.) The inhabitants are not released from the various obligations they owe each other and to the community. These are quite independent of their allegiance to the deposed sovereignty. These obligations must be discharged, and therefore the municipal laws of the country-the laws regulating the relations between individuals-are continued in force. Originally this was considered an act of grace on the part of the conqueror; but the practice is now so well established among civilized nations as to make it one of the "laws and usages of warl." Although said laws continue in force, the authority of the officials who administered the laws under the previous sovereignty ceases, as of course, upon the assumption of control by the military forces of the invader. The further exercise of power by said officials is to be considered as by and with the authority of the military force mnaintaining the occupation. Lieber's Instructions for the Government of Armies of the United States in the Field (sec. 1, par. 6), lays down the rule as follows: All civil and penal law shall continue to take its usual course in the enemy's places and territories under martial law (military government) unless interruplted or stopped by order of the occupying military power; but all tlie functions of tl,' hostile gorernzment-legi8latire, e.'ecutire, or (tcd( iistratire — ' lcetlher of a general, pro0incial, or local character, ce'ase under martial lai', or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader. Military government-that is, the administration of the affairs of civil government exercised by a belligerent in territory of an enemy occupied by him-is not considered in modern times as doing away with all laws and substituting therefor the will of a mnilitary commander. Such government is considered as a new means or instrument for tle execution of such laws, natural and enacted, international and domestic, as are necessary to preserve the peace and order of the community, protect rights, and promote tlme war to which it is an incident. Under any government, if for any reason.the usual and ordinary means of enforcing the laws and accomplishing the purposes of government are found inadequate to meet an existing emergency, resort may be had to martial rule in order to enforce the law and accomplish the purposes of government. Martial rule is intended to effectuate some law, not to abrogate all law. To illustrate: Private property may be taken or injured for public purposes. Ordinarily this is accomplished by the slow process of condemnation. Under martial rule the, process is accelerated. If the necessity apparently exists, as in the presence of a conflagration, a building may be summarily destroyed or trespass committed without liability. Again, a man's life may be 15 taken if he is guilty of tieason. Under- the ordinary administr-ation of the law the niost notoriously guilty ind~ivi(lutal, capftured red-bandedl, must be proceeded against by the, slow process of the court. Undermar-tial rule lie is incontinently exec-uted. It is the procedure which is dlispenlsed wvith, not the Law. W'hile a militarv groverinment continues as an instrument of wvarlfare, used to lprou1ote the objects of the invatsion by weakening the enemy or strengthening the inivader., its lpowens- ar-e pi'actically boundless. inI New Orleans v. Steamship Company (20 Wall., 387. 394) thecourt say: In -such cases thie conquering power hias a right, to (lisplace, thre preexisting authoritv and1 to assume to such ant extent as it may (leem proper the exercise 1 Iv itself of all the powers andl functions of government. It may appoint all thie necessary officers and~ clothie them with designatce(1 powers, larger or smaller, accornling, to its pleasure. It may prescrilbe the revenues, to he pail andl apply thien to its owvn us~e or othierwise. It may dlo anythiing iwocswrsso to.tt,cno/tl(o,n itselt ood w/otbe ea0/0/. Thiere is ilo liniit to thle powers that miav be exercise(l iii such cases, save thos~e wh~ich are found ill the laws andl usage-_s of war. But wvhen the war is ended and the military govern enit ce~ases to be an instrument to piuomote atuftal w~arfartre, ancd devotes itself s4imply to civil aflairs instead of militar-y affairs, limitations at onice attach. The reasou for this rule is dlerivedi froiu the estalblishedl doctrine th~at military govermunent or martial rule is the cr-eature of necIessitv, and its acts mius't be justified 1w) niecessitv-real or apparent. (See Thse Justification of Mlartial Law, lwyG Normian Lieber, ~Judge-AdvocateGeneral. U. S. A.,1 War D~ept. lDoc. No. 79.) InI Ex P~arte Milligan (4 Wall., p). 2), the majority of the court held as follows (127): Tt follows, fromt what has been said onl this sub~ject, that there are occasions'~ whien martial ruile can lie jprop~erly alillied. if, ini foreign inivasioin or civil war, * * on the theater of active military operations, where war really prevails, thiere is a nece —ssity to furnish a substitute for time civil authtority, thus oiverthrowvn to preserve the safety (it the army and society, and as no power is left hut the military, it. is allowedl to govern lby mia~rtial rule until tile laws can hiave their free. cours-e. A's neces~sity creates the rule, so it. limits its (lurationi * And 51o ill the case (if a foreign invasion mlartial rule max' become a niecessity in ii n state whlen, in ano(_ther, it would be mere lawless~ violenice. InI Raymond. (hom 1 1U. S. 712) the cour hedvi a re of General Canbv issued1 May 28, 18,8 whereby he undertook to annul the decree of a. court of chancery- ini South Carolina. The court sav: It was anl arlbitrarvystretchi of authority needlful to no goo(d endi that can he imaginedl. Mihether Congress could have cmnferredl the power to do suich an act is a question we are not called upon to consider. It is, an unbending rule of law, that the exerAFse of military power where tile rights of the citizens are concerned shall never he Pushed beyonld what the exigency requires. Citing Mitchell v. Hlarmony, 13 How., 115; Worden?.. Bailey, 4 Tauint., 67; Fabrigas r. Moy-sten, 1 Cowp., 161. 16 II. THE TREATY OF PEACE BEING ENTERED INTO AND PROCLAIMED, MAY SAID MILITARY GOVERNMENTS LAWFULLY CONTINUE TO EXERCISE AUTHORITY IN CIVIL AFFAIRS! The military governments under consideration were established to deal with conditions resulting froom successful invasionl. As a result of that invasion the prior sovereignty had been expelled and the instruments and agencies of that sovereignty for the performance of the functions of civil government had been deprived of the authority theretofore exercised:s the representatives of that sovereigonty. Everywhere and at. all times goovernment of sonime kind is a necessity, andl(t this necessity justifies and requires the continuance of the military governmlllent until there is established in said islands a civil governlent which comports with the interests and inclinations of the dominant po)wer. Tills qluestion arose ill the Unlited States upon the exchange of ratifications of the treaty of peace with Mexico ill 1848. Respecting the contillnud existence of the military governments established )by the United States in New Mexico and Upper California, President Polk said: Thie unly governmnent which remained was tlhat established by the military authoritvy luring tlIe war. Regarding this to be a d, ftacto government, and tlhat by the lresumu ed1 consent of the inhabitants it miglit ble continued temporarily, they were adtvisc(l to conform and submit to it for the short intervening period before (ongress w-ul(l a-ain assemi)le anid could legislate upon the subject. (Mlessage to C(oig. I)ec. 5, 1848; see MIesages and Papers of thle Presidents, vol. 4, p. 638.) With reference to the saine nmatter. Mr. James Buchanan, at that time Secretary of State, said: The termination of the war left an existing government, a government.t (Ic fcto in full opelratioin, andl thnis will continue with the presumed consent of thle people until (ongress shall )pro-vid( for them a Territorial government. The great law of necessity justifies tllis conclusion. The consent of time people is irresistibly inferred from tlhe fact that no civilizedl commiunity could possibldy desire to abrogate an existing, goverminment when the alternative presente(l would be to place themselves in a state of anarchy, lbeyo(l the protection of all laws, ai(d reduce them to the unhappy necessity.of sul)nnittingr to tle (lominion of the stron(get4. (See Ex. I)ocuments, 2d sess. 30th C., 1)(,(c. N(. 1, p. 48). The continutance of the military g'overnment over C(alifornia after peace was declared was considered by the Supreme Court of the United States in Cross r. Harrison (16 How., 164), and therein the court say (pp. 1983, 194): It was the government when the Territory was ceded as a conquest, and it did not case as a matter of course or as a necessary consequence of thle restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but ne did not (ldo so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is that it was 17 meant to b)e continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever ma'- have been the causes of delay, it must be presumed that the d(elay was (s)nsistent with the true policy of the Government; and the more so, as it was continued until the people of the Territory met in convention to form a State government, which was subsequently recognized by Congress under its power to admit new States into the lUnion. That military government may legally continue 'ia bello cess(ante equally in jftlgrante bello was the substance of the holding in Lamar?. Brown, 92 U. S., 187, 193, et seq. (See also Leitensdorfer t.. Webb, 20 How., 176; Dow v. Johnson, 100 U. S., 168; Texas '. White, 7 Wall., 700; The Grapeshot, 9 Wall., 132; Burke v. Miltenburger, 19 Wall., 524; Lewis v. Cocks, 23 W1all., 469; Mechanics' Bank v. Union Bank, 22 Wall., 276; Pennvwitt v. Eaton, 15 Wall., 382.) The course pursued by the Congress of the United States at the close of the civil war establishes the acceptance by Congress and this nation of the doctrine that military government may continue after the cessation of hostilities and until the purposes for which the war was entered upon, or rendered obvious by the war, are accomplished. As regards private rights the civil war ended August 20, 1866. (McKee v. Rains, 10 Wall., 22; United States q,. Anderson, 9 Wall., 561; MIcElrath v. United States, 102 U. S., 426.) As regards public matters there were two proclamations made by the President declaring that the war had closed-one issued April 2, 1866 (14 Stat. L., 81), embracing all the late rebellious States excepting Texas, and the other issued August 20, 1866 (14 Stat. L., 814), embracing Texas. The Executive undertook to place the States whicl had engaged in the rebellion on a footing of equality withl the other States of the Union. Congress antagonized this position and passed what are known as the "reconstruction acts." (14 Stat. L., 428; 15 Stat. L., 14.) These acts provided for military government possessing sovereiga powers to be exercised by martial rule in the several States mentioned. For this purpose said act required: That said rebel States shall be divided into military districts and ma(le subject to the military authority of the United States. (14 Stat. L., 428.) The powers given to the district commanders were ias follows (sec. 3, chap. 30, 14 Stat. L., 428): SEC. 3. And be it f1urther enacted, That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace, and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or when in his judgment it may be necessary for the trial of offenders he shall have power to organize military commissions or tribunals for that purpose, and all interference under color of State authority with the exercise of military authority under this act shall be null and void. 1394-03- 2 18 The reason for such government was declared by the preamble as follows: Whereas no legal State governments or adequate protection for life or property exist in the rebel States of [naming them]; andi whereas it is necessary that peace and good order should C 1 enforced in said States until loyal and republican State governments can be estal)blishe(d: Therefore. The Supreme Court refused to interfere with the enforcement of said reconstruction acts or tle exercise of the authority conferred thereby. (State of Mississippi,'. Johnson, 4 Wall., 475; State of Georgia,. Stanton, 6 Wall., 50; Handlin v. Wickliffe, 12 Wall.. 174; White?,. Hart, 13 Wall., 646.) The court held that this legislation was political in character, and therefore outside the jurisdiction of the judicial department; that in creating such legislation Conoress exercised certain of the sovereign powers of the nation which exist, but are reserved to the people by the Constitution. No one ever clailned that the governnment created by this legislation was that provided for by the Constitution of the United States for the States of the Union. It found its legal jusitfication in leiing an exercise of the inherent right of national sovereignty to adequately deal with a national emergency. The situation theii existing is thus described by Birkhimer: But it was also true that the civil governments in the late insurrectionary States were inimlical to the Union; that society there was in a dangerously disordlere(l condition; that (leep-seated enmity was at this period entertainedl 1by the leading people to ward important principles of governmental policy which those who had saved the Union had resolved should be incorporated into the Constitution. (Fourteenth amendment.) Technically it might be terlmed( " timle of peace," but in reality it was far different, as that plhrase is generally unlerstool. (Military Goverlnment and M.artial Law, 1 ed., p. 388.) In Texas the military government installed under the reconstruction acts continued until April 16, 1870. Prior to the passage of the reconstruction acts in 1867 the people of Texas called a constitutional convention, which convened on February 7, 1866, and so amended the constitution of the State as to meet the changed condition of affairs brought about by the result of the war and tile fourteenth amendment to the Constitution of the United States. These amlendments were ratified by) the people. All officers provided for by the State constitution were elected and entered upon the discharge of their respective duties. The legislature met an(l passed laws and the State government was again administered by officers holding under the termsl of the constitution; all the courts were held by judges elected as the constitution prescribed, and county and municipal officers selected in the same manner entered upon the discharge of their duties. But the reconstruction act of March 2, 1867, declared that no legal State government existed in Texas, and provided further for the military government of said State. The officers elected under the constitution 19 were remloved from office and others appointed in their places. Among them the governor of the State, elected under the constitution as amended in 1866, was displaced and a provisional governor was appointed and held the office until September 30, 18619, \when he resigned, and from that time until January 8, 18,7), the e(xecutive duties were performed by an adjutant of the general in commllan(l, placed in charge of civil affairs. On April 16, S170, by General Orders, No. 74, the military coemmander declared the State had resunied p)rac'tical relations to the General Government, and all the authority coniferred upon hlill y the reconstruction laws was relllitted to the civil authorities. In discussing this phase of military government, Pomerov says: " Military government " is the authority by which a coimmander governs a conquered district when tile local institutions have bleen overthrown anl the l(cal Irulers displaced, and before Congress las ia(l an opportunity to act uider its power to dispose of captures or to govern territories. Tils authority in fact belolgs to tlhe President, and it assumes the war to be still raging anll the final status of tlhe conqueredl province to be undetermined, so that the apparent exercise of civil functions is reallv a measure of hostility. "'Martial law" is sometlhig very different. It acts, if at all, within the limits of the country, against civilians who have lnot,lpelyl enrolled themselves as belligerents amonlg the forces of an invadlingo or a rebellious enemy. (Pomneroy's Constitutional Law (Bennett's Third E'1.), par. 712, p. )5:5.) Biirkhimer says (p. 290): The experience of the United States Government but adds to the evidence (erivable almost universally froIm tlie history of other nations that military go,\vernmtent ceases at the pleasure of him who iinstituted it, 1upo1 such collditioll as hIse elects to impose, and that its termination is not in p)oint of tilmeoiiet, ici eithier necessarily or generally, with the cessation of hostilities letween tlie co'ntenliing bellicgrenits. It therefore appears that the continuance of military governmenlt in said islands after the exchange of rattifications of tlhe tlreaty of l)eace witll Spain is in harmony with the theory heretofore:acceptetl and approved by the executive, legislatie, an(ld jd(licial brallnches ()f the Government of the United States. IIII. THE EFFECT OF THE TREATY OF PEACE UPON THE CHARACTER AND EXTENT OF THE AUTHORITY OF THE MILITARY GOVERNMENT IN PORTO RICO, CUBA, AND THE PHILIPPINE ARCHIPELAGO. The conditions existing in Porto Rico, Cuba, and the Philippine Archipelago are not identical, and therefore the:,everal militarvy (overnments thereof must )be separately considered. PORTO RICO. Upon the ratifications of the treaty of peace being exchanged, the sovereignty and jurisdiction of the United States permanently attached to Porto Rico and the island became territory appertaining to the 20 United States. The United States is in undisputed possession of the island, and therefore the military government of Porto Rico has ceased to occupy the place of the suspended or expelled sovereignty of Spain and has become an instrument of the new sovereignty. It has become the repcresentative of sovereignty instead of a substitute. Since hostilities have ceased in Porto Rico, it follows that the military government is not authorized to adopt measures seeking to promote the success of military operations nor to justify its action on that ground. As to Porto Rico the war has ended and the purposes of the miiitary operations therein have been accomplished, that is to say, a complete conquest has been effected and a peace secured. Therefore in that island the United States is no longer a belligerent, and it follows that the existing government therein no longer exercises its powers by virtue of belligerent right. Regarding the provisional government maintained in California and New Mexico after the treaty of peace with Mexico, President Polk said: Upon the exchange of ratifications of the treaty of peace with Mexico, the temporary governments which had been established over New Mexico and California * * * by virtue of the rights of war ceased to derive any obligatory force from that source of authority. (Message to Congress, December 5, 1848; see Ex. Doc. No. 1, p. 12, Thirtieth Congress, second session.) James Buchanan, then the Secretary of State said: By the conclusion of the treaty of peace the military government which was established over them, under the laws of war as recognized by the practice of all civilized nations, has ceased to lerive its authority from this source of power. (Ibid., p. 48.) Ilalleck says: There can be no doubt that when the war ceases the inhabitants of the ceded territorv cease to be governed by the code of war. Although tle government of military occuplation may continue, the rules of its authority are essentially changed. It no longer a(dministers the laws of war, but those of peace. The governed are no longer subject to the severity of the code military, but are remitted to their rights, privileges, and immunities under the code civil. (Halleck's Int. Law, 3d ed., vol. 2, chap. 34, par. 18, p. 487.) In time of war the military dominates all other branches of the Government. During the time and in the locality of military operations of actual war the laws of peace are suspended and the most cherished rights of individuals and communities may be ignored or obliterated should the exigencies of the military situation actually or apparently require it. Such is the right of a nation in the presence of the perils of war. Such is the power conceded a belligerent by the established usage of nations. A treaty of peace being entered into, the perils of war pass away as does also the right of the military to exercise the undefinable, illimitable power of belligerency; the laws of peace are again operative; and 21 the rights of individuals and co nllll ities are again entitled to recognition and protection. The difference in the extent of power when used by a military g.overnment for the purpose of promoting actual warfare and whenl used in time of peace for the administration of the affairs of peace is shown by a number of decisions of the Supremle Court of the United States. In The Grapeshot (9 Wall., 129) it was held that: When, daitring the late ciril iror, portions of the insurgent territory were (occupied by the National forces it was within the constitutional authority of tlhe ]'resilent, as colmander in chief, to establish therein l)rovisional courts for the hearing and determination of all causes arising under the laws of the State or of the Unitedl States, and the provisional court for the State of Louisiana, organized undler tile proclamation of October 20, 1862, was therefore rightfully authorized to exercise such jurisdiction. (Syllabus.), In the body of the opinion the court say (page 133): We have no doubt that the provisional court of Louisiana was properly established by the President in the exercise of his constitutional authority (dllring c(r.. In ex parte Milligan (4 Wall., 2) it was held that the military court which in 1864 tried MAilligan for treason was without jurisdiction, for the reason that said court sought to exercise jurisdiction in the State of Indiana, which State was not the theater of actual warfare; and, as the courts of that State were open, they alone had jurisdiction. In the majority opinion the court say (p. 121): But it is said that the jurisdiction is complete under the "laws and usages of war." It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in States which have upheld the authority of the Government, and where the courts are open and their process unobstructed. The court further say (p. 127): It follows, from what has been said on this subject, that there are occasions whlen martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of ac(tire mlilitary operations, where v'ar really prertils, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but thle military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for if this governmlent is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always.administered. And so in the case of a foreign invasion, martial rule may become a necessity in one State where in another it would be mere lawless violence. In Leitensdorfer et al. v. Webb (20 How., 176) it was held that during the war with Mexico and upon the acquisition of the Territory 22 of New Mexico, in 1846, the executive authority properly established a provisional government, which ordained laws and instituted a judicial systel, which continued in force aftel the war as aan existing instrlumentality of an existing or (/C fi(cto government. nl Ex parte Mlilligan (4 Wall., 2) the court were unanimous, as to thle want of authority in the military court which tiied the case. The court were divided as to the power of Cong ress to confer authority upl)o such a, tribunal. Upon the matter on which the court agreed, I q(lote the following fromn the dissenting opinion of the Chief Justice and Wayne, Swavne, and Miller, JJ. (pp. 139, 140): Th'le lpower to mnake thle necessary laws is in Congress; the power to execute in the I'residlnt. Both powers imply manyla-l subor(iiinate an(l auxiliary pow-ers. But neither can the IPresident, in war more than in peace, intrudle upon the proper authority of Collgress, nor Congress upon the prolper authority of the I'resident. Both are servants of tlhe pleolple, whose will is expressed in the fundamental law. Congress can not direct the conduct of campaigns, nor can thle P'resident or any comIan(ler under him, withlout the sanctionl of Congress, institute tribunals for the trial and punishment of offenders, either of soldiers or civilians, unless inl cases of a controllincg necessity, lwhich justifies what it compilels,, or at least insures acts of indemnity fronm the justice of the legislature. We lvy no means assert that Congress can establishl and apply the laws of war where no war hlad been declared or exists. Where peace existAs the laws of peace must prevail. In oJecker et al. v. Montgomery (13 How., 498) the facts were that dulring the war with Mexico the Aildnul ttance, an Amierican vessel, was seized in Ia port of California April 7, 1847, by the commander of a war vessel of the United States upon suspicion of trading with the enemy. She was condemned as a lawful prize June 1, 1847, by the chaplain of one of the war vessels upon that station, who had been authorized by the President to exercise admiralty jurisdiction in cases of capture. The owners of the cargo filed a libel against the captain of the vessel of war in the admiralty court for the District of Columbia. It was held that the condemnation in California was invalid as a defense for the captors, as the prize court established in California was not authorized by the laws of the United States or the laws of nations. In the opinion the court say (p. 515): Neitlher the President nor any military officer can estal)lisl a court in a conquered country and authorize it to decide up-on the rights of the United States or of individuals in prize cases, inor to administer the laws of nations. The courts established or sanctioned in Mlexico during the war by the commander of tlhe American forces were nothing more than the agents of the military power to assist it inl preserving order in thle conquered territory and to protect tile inhabitants in their lersolls and( p)roperty while it was occul)ied by the American arms. In Texas v. W\hite (7 Wall., 700) it was held that authority to provide for the restoration of State governments when subverted and overthrown is derived fromn the obligation of the United States, under the Constitutions, to guarantee to every State in the Union a republican forny of government. (Art. 4, sec. 4.) So long as the war con 23 tinued the President mlighlt lnstitute tellporary government within insurgent districts occupied by the national forces or take provisional measures in alny! State for the restoration of State government faithful to the Union. emplloying such m1eans and agll ents as as were authorized by constitutional laws. But the lpower to carry into effect the clause of guaranty is primarily a legislative power. tand resides ill C(ongress. In the opinion the court say (p. 729): Almost ilmmediately after the cessation of organized hostilities, md(l clhile t1ie wtr yet s)loldered in Texas, thle lresident of tle United States issue(d his proclamation appointing a plrovisional governor for tlme State, an(d providing for tle asselmbling of a convention, with a view to the reestablishment of a republican government. * * * A convention was accordingl y assemllle(l, tl e constitution amende(l, elections hiel1, and a State government, acknowledging its obligations to the lnion, estal)lislle(l. \Whether the action then taken was, in all respec'ts, w\arrante 1by tle Constitution it is not now necessary to deterllline. The power 'exercised y tlle President was supposed, doubtless, to be derived from his constitutional flunc(ti(ls as comllmanmler in chief: land so long a(s t1e 'ewar cotitned it can not b)e.leniedl that he miglht institute temporary government within insurgent districts occupied 1)y the national forces, or take measures in any State for the restoration of State government faithful to tlie Union, employing, however, in such efforts only suclh means and agents as were authorizedl b1 constitutional laws. But the power to car'r into effect tlhe clause of guaranty is )rimarily a legislative power, a(nd residles in Congress. (See also Luther. Borden, 7 How., 42.) The supremacy of military authority over the civil authority in the administration of the affairs of government is repugnant to the principles upon which stands the Government of the United States, and the theories of government cheiheihed by the people of this nation and the race to which we belong. Fronl the struggle w hich forced Magna Charta from an unwilling sovereign to that which compelled the Crown of Spain to relinquish sovereignty in (Cuba. tlie Alglo-Saxon race lhas never varied from its adhesion to the principle that the military was the subjected, and not the dominant, 1branch of government, save only amid the clash of arms or on other occasions when the government is called upon to exercise the right of self-defense conferred by the law of self-preservation. It would seem, therefore, that the paramount purpose of a military government, after the war ceased, should be to create conditions which would enable the civil branch to assume the ascendency in the affairs of civil governmlent. in kind if not in degree, with the paramount purpose during the war of promoting the success of its sovereign's military operations. There are certain obvious consequences respecting Porto Rico, resulting from the war with Spain, which it may be well to consider. The transfer of sovereignty from Spain to the United States, whether accomplished by the conquest or the treaty of peace, requires a determination of the relation to the Government of the United States sustained by the inhabitants of the island and by the government of 24 the island. Neither the military government of the island nor the executive branch of the Government of the United States has jurisdiction to make this determination. As to the inhabitants the treaty provides (Art. IX): The civil rights and political status of the native inhabitants * * * shall )e determined by the Congress. The authority to determine what relation the permanent government of Porto Rico shall sustain to the Federal Government of the United States is also vested in Congress. The history of our country is not without instances of attempts by the executive branch of our Government to anticipate the action of Congress in the determination of the relations between the Federal Government and the civil government in territory subject to military occupation; notab)ly the instances of Upper California and New Mexico and the States which engaged in the rebellion and associated themselves as the Confederate States of America. In these instances Congress refused to recognize the actions taken pursuant to Administrative or Executive authorization. In the instance of California the action of Congress was such that President Taylor sent a message to that body disclaiming all responsibility in the matter. (Message to 31st Cong. dated Jan. 21, 1850; Ex. Doe. No. 17, lstsess. 31st Cong.) In 1863 President Lincoln undertook to weaken the rebellion by the formation of loyal State governments in the rebellious districts, and for this purpose issued a proclamation December 8, 1863, inviting the people to form such governments under conditions set forth in the proclamation. (13 Stat. L., 738.) This was clearly a war measure. Pursuant to the request of President Lincoln, State governments were formed in Louisiana and Arkansas early in 1864 and in Tennessee early in 1865. To the State executives thus chosen were given the powers theretofore exercised by the military governors previously appointed by the President. Congress declined to recognize the governments so organized; and the Senators and Representatives elected thereunder were denied seats in the respective Houses. Those were the last governments organized, while the war of the rebellion continued, in territory occupied by rebels treated as belligerents. They were the first efforts toward a reconstruction of State governments in insurgent territory. Their organization caused the first decided antagonism between the Executive and Congress growing out of the conduct of the war. The continued efforts of the succeeding Executive to secure Congressional recognition of these governments as sustaining the relation of component parts of the Union' resulted in a controversy which culminated in the extraordinary proceeding of impeachment. The views entertained by Congress as to the attempts of the Execu 25 tive to institute permanent governments in the territory subject at that time to military occupation were fixed among the institutions of our Government 1,by what are known as the r' econstruction acts." By the act of March 2, 1867, said governments were denounced as illegal, subjected to military control, and declared to })e Irovisional only. 14) Stat. L., 428.) There exists an obvious necessity of creating an1d establishling a permanent civil government in Porto Rico. The authority necessarily to be exercised in accomplishing this work is vested in Contgress. Porto Rico is now a conlllest, or property seized ais a spoil of war. and held to reimburse this nation for the loss of blood land treasure occasioned by the war, and to deter other nati()ons from engaging in war with the United States. The Constitution provides as follows: The Congress shall have pows-er * * * 11. To declare war, grant letters (,f llarque and reprisal, and make rules concerning cal)tures on land and water; * * * 18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vestel 1by tills Constitution in the Government of the United States or in any department or office thereof. (Art. I, sec. 8.) The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. (Art. IV, sec. 3.) The creation of a permanent civil government for Porto Rico calls for the exercise of legislative powers; and the Constitution provides thatAll legislative powers herein granted shall be vested in Congress. (Art. I, sec. 1.) Halleck's International Law (3d ed., vol. 2, chap. 34, par. 1i, p. 483) says: The right of the King to change the laws of a conquered territory,tier I/e oi'((r, results, according to the decisions of the English courts, from his constitutional )po)wer to make a treaty of peace, and consequently to yield up the conquest, or to retain it upon whatever terms he pleases, provided those terms are not in violation of fundamental principles. But the President of the United States can make no treaty without the concurrence of two-thirds of the Senate, and his authority over cededl conquered territory, though (terived from the law of nations, is limited 1by tle Constitutionand subordinate to the laws of Congress. It, however, is well settled by the Supreme Court, that, as constitutional commander in chief, he is authorized to form a civil or military government for the conquered territory (luring the war; and that when such territory is ceded to the United States, as a conquest, the existing government so established does not cease as a matter of course or as a consequence of the restoration of peace; that, on the contrary, such government is rightfully continued after the peace and until Congress legislates otherwise. * * * So long as that government continues * * * it represents the sovereignty of the United States, and has the legal authority to enforce and execute the laws which extend over such territory. Congress may at any time put an end to this government of the conquered territory, and organize a new one. * * * The power of Congress over such territory is clearly exclusive and universal. 26 It is undoubtedly true that the military government of civil affairs in Porto Rico will continue to be administered by martial rule and that martial rule includes authority to deal with each necessity that may arise. In attenpting to apply this broad rule it must be Oremembered that " ncessity, as used in connection with the justification of martial rule, means that which is essential or indispensable to the accomplishment of a required purpose. What are the purposes required of the existing military government of Porto Rico? To the writer it appears that since said government has ceased to be an instrument of actual war, its purposes are (1) to promote conditions which will justify the transfer of the administration of civil affairs to the civil branch of the government; (2) to preserve peace and order in the island, i. e., police the territory until Congressl, shall have an opportunity to effect the legislation required by the conditions existing in that territory. To accomplish these purposes the most potent means available to the nilitary government is the military force placed at its disposal. Next in importance are the various agencies of civil government subject to its direction and control and the police power of a State. The methods land procedure to be followed in attempting to accomplish these purposes are those available under the laws continuing in force in the island, supplemented by the military orders of legislative character issued during the existence of the war. The powers derived from these sources are not sufficient to cope with all matters which nma properly be the subject of governmental action when permanent government is established. There are undoubtedly rights to be released and conferred, abuses to be corrected, wrongs to be righted, and many public undertakings to be entered upon; )but sucht is also the existing condition in the United States and all other countries. These await the orderly progress of the agencies of government created by the Constitution, which deal with them as best they can, often inadequately it is true; but a nmilitalr government is by no means a short cut to the millenilum. A military goveNrnment installed by the United States in territory ceded and held as a conquest, is required, in time of peace, to execute the la1ws in force in the territory subject to its jurisdiction. The question therefore arises as to what laws are in force in Porto Rico. 1. I have heretofore referred to the general doctrine that the inhabitants of territory subject to military occupation or held as a ceded conquest are governed in their relations 'in t,',se by the municipal laws of such territory il force at the time of the cession or conquest. Said laws, while they are not suspended or abrogated by the fact of military' occuplancy, may be suspended or altered by the conqueror during the period of the war when he exercises the power of supreme legislator as a1 belligerent right. (See Ialleck's Int. Law, 3d ed., chap. 34, sec. IS.) 27" *It is therefore neces-sarv to (ktetem'iine what laws remained -without Modificatioii whein the war enided, and what niodifications had been made. 2. It is also necessary to -oiisider that upon the occup —iedl territory beinog ceded to the United States all of the laws of the for'mer sovereignty which were incompatible~c with the character aend institutions of Our Gjioverninlent became nutll of f orce,and void of eff ect.. (Clhi., R. I. &k P. ity CO. 9r. MCGlinn, 1141 U. S.. 5,42, `46; Amn. Ins. Co. 'c. Canter, 1 Pet., ~542; More 'v. Steinbach, 127 U. S.. 170( 's.) In Railwav Co. r.McGlinn the court say (p. 054h): Rt is a general rule of pulblic law, recognizedl anil acted upont b.y the United States, that whenever political jurisdiction and legislative power over any territory are tranlsferred from one nation or sovereign to anothier, the mnunicip~al laws of the country, that is, lawhs which are intended for the protection of priv ate rights, (-ontinue in. force until al rogated or changed by the nwgovernment or s'overeicgn. By the cession pulblic property passes f romn one government to thle ot~her buit pr invate lprop~erty remains as b~efore, andl with it those mnunicilpal laws which are dlesigned to secuire its Jpcleeful use and enjoyment. As a mnatter of course, all laws, o-.rdinailces, ad regulations in conflict w\Nithi the political character, institutions, and consttmtution of the new governmient, are at once (lIislinla-edl. Thus, uipon a cession of p)olitical jumisdiction and legislative pow-er-andl thme latter is involved in thle fornier-to the Unmtedl States, the laws of thle country iii support of an established religion, or abridging the freedoin of the press, or auhrzicu l a~ unusual punishnments, and the like, would at once cease to be of oldligatorv- force without any (declaration to that. effect; and the laws of the couintry onl other subjects would necessarily be sulpersededl by existing las f thme new grovernment uipon the s-amne matters. B3ut with respect: to other laws affecting possession, use, and transfer of property, and dlesigned. to secuire good order and peace in tle, community, and lpromnote its health and pr'osperity, which are strictly of a, municipal character, the rule is general that a change of government, leaves- themn in force uintil, by direct aection of the new go:verniment, they are altered or repealed. Amnong other laws, which Ipaiss away with a surrendered sovereignty In are those relating to the alienation of public property. InI More v. Steinbllfach (127 U-. S., 70, Si) the0 court say11: The doctrine invoked by the defendants, that the laws of a conquered or ceded counmtrv, e-Xcel)t so far as they may affect the political institutions- of the new sov)Nereigii remiain in force after the conquest or cession until cllange(.l1w liihim, (does miot aidl their defense. That (doctrinme has no application to laws authorizinor the alienation of afny lwortioins- of the puiblic dom-)nain, or to o)fficers charged undier the formler goverumiment with that p)ower. -No proceedings affecting the rights- of thle new sovereign over lpublic property can lbe takeni excep)t in lulsuiance of his authority onl the sulbject. (See also Ely's Adlnir.,' ntdSae,111.S,220, 230; tUie ttsv Vallejo, I Black, 541; 1-larcourt r. (iailliard, 12 Wheat., 523.) 3. While the. municipal laws,, of newly acquired territory not in conflict with the laws of the new sovereign continue in force without the, expressed assent or affirmative act, of the conqueror-, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14.) However, such political laws of the prior sovereignty as are not in conflict with the constitution or institution of the new sovereignty may be continued in force, if the conqueror shall so declare by affirmative act of the 28 commander in chief during the war, or by Congress in time of peace. (Ely's Administrator r. United States, 171 U. S., 220, 231.) 4. The laws of the new sovereignty which j1)'o2)io v(,wc extend over the newly acquired territory. The administrative branch of this Government, believing that the power of extending the existing laws of the United States over the territories acquired by the late treaty of cession with Spain is lodged in Congress, that belief nmust be assented to and respected by the military governments of said territory. 5. The provisions of the treaty of peace antl cession and the olbligations of international law are binding upon the militlary government, not only in a national sense, but also as they affect the rights of individuals. (Ex Parte Cooper, 143 U. S., 472; Whitney,'. Robertson, 124 U. S., 190; Edve v. Robertson, 112 U. S., 580.) 6. An officer of the United States acting as a military governor is bound to obey the orders of his superior officers, and to confornl to such rules, regulations, orders, and instructions as the home Government is authorized to make, either by virtue of its own laws tand principles of government or by the general law of nations. 7. The military government of Porto Rico may exercise the ' police power" of a State. It may be well to call attention to the fact that the officers of the United States Army who are acting as governors and other executive officers of the governments being maintained by the United States in the territories ceded and relinquished by Spain are officials of the United States, and derive their authority from this Governmnent, and not from the Crown of Spain? The right to exercise certain royal prerogatives which had been possessed by the officers of Spain did not pass to the officers of the United States. In Munford q. Wardwell (6) Wall., 423, 435) the court held: Mexican rule came to an end in that department on the 7th of July, 1846, when the government of the same passed into the control of our military authorities. Municipal authority also was exercised for a time by subordinate officers appointed by our military commanders. Such commander was called military governor, and for a time he claimed to exercise the same civil power as that previously vested in the Mexican governor of the department. By virtue of that supposed authority Gen. S. N. Kearney, March 10, 1847, as military governor of the territory, granted to the town of San Francisco all the right, title, and interest of the United States to the beach and water lots on the east front of the town, included between certain described points, excepting such lots as might be selected for government use. * * * But the power to grant lands or confirm titles was never vested in our military governors; and it follows as a necessary consequence that the grant as originally made was void and of no effect. Nothing passed to the town by the grant, and, of course, the doings of the alcalde in selling the lot in question was a mere nullity. In letter to the Secretary of War dated July 10, 1899, AttorneyGeneral Griggs (22 Op., 527) says: By well-settled public law upon the cession of territory by one nation to another, either following a conquest or otherwise, those internal laws and regulations which 29 are designated as municipal continue il force and operation for the government and regulation of the affairs of the people of said territory until the new sovereignty imposes different laws or regulations. Those laws which are political in their nature and pertain to the prerogatives of the former government inmmediately cease upon the transfer of sovereignty. Political andl prerogative rights are not transferred to tile succeeding nation. Suchl laws for the government of municipalities in said territory as are not dependent on the will of the former sovereign remain in force. Such laws as require for their colmplete execution the exercise of the will, grace, or discretion of the former sovereign would probably l)e held to l)e ineffective under the succeeding power. Whether or not the prerogative rights of the sovereign of Spain passed )by the cession to the sovereign people of the United States, it is not necessary to discuss. The Federal Government of the United States derives such powers as it possesses from the people, by and through the Constitution, wherein said powers are enumerated. As was said in Pollard's Lessee?,. Hagan (3 How., 225): It can not be admitted that the King of Spain could, biy treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. It is important to ascertain whether or not the head of the military government of Porto Rico may now exercise the power of legislation. In time of war and in territory affected by military operations undoubtedly the head of a military government may exercise this power. War no longer exists in Porto Rico. The sovereignty of the United States has attached permanently to the island, and the Government of the United States is in peaceable possession of the territory. The right to legislate therefor now belongs to Congress, and I see no reason for asserting that the jurisdiction of Congress has been suspended or Congress in any way incapacitated for exercising this right. It is the inability of the duly authorized agency of government to perform its proper function which authorizes the performance of that function by martial rule. As to legislation for Porto Rico, this justification can not be asserted. Notwithstanding this want of authority to legislate, the head of the military government of civil affairs in Porto Rico is at liberty to issue military orders which the inhabitants are bound to obey. His warrant therefore is the vis qmajor at his command and constitutes an authority akin to the police power of a State. Therefore such orders should relate exclusively to the internal or domestic affairs of the island. These orders differ from legislation in that they lack abiding force or permanency, since their force would cease upon the military government being withdrawn, unless Congress, by appropriate action, should continue them in force and effect. In respect of the exercise of this authority, it is necessary for those charged with the high duty of administering military government to bear in mind that a military government in time of peace is not only 30 a lawful government, but also a goverllment of law, and that law isto quote Blackstonea rule of civil conduct prescribedl by the supremle power of the state; * * * lnot a transient, sudden order from a suiperior to) or concerning a particular perscbon, l)ut something permanient, uniform, andl niversal. It is also important to ascertain if the head of the military government of Porto Rico lmay exercise the powers of the judicial lralich of 'overnnient. The functions performed by the judiciary are essential to good government, and therefore lmust be performed in Porto Rico. The jurisdictionll to exercise j udicial authority in territory to which the sovereignty of the United States has attached differs fronl that of legislation, in that the jurisdiction to legislate is conferred upon Congress by the fact of the sovereignty attaching, while the Federal courts of the United States, being dependent upon Congress for their territorial and other jurisdiction, must await appropriate action by Conlgress for jurisdiction over newly acquired territory. Meanwhile the necessity for judicial actionl continues, and the militalry government is called upon to meet the necessity. Article XII of the treaty of peace (1898) clearly contemplates that the ordinary courts of the prior government will continue in existence, and such is the usage of nations. If these courts are found inadequate to deal with the domestic or internal situation arising }by reason of the questions involved in the relations sust(ained by the inhabitants of the island, ir8t,'.se, I aml of opIirnion that tile head of the military government of the island would be authorized to discharge the necessary functions, and to accomplish said purpose 1m1ay designate instruments therefor, to wit, courts. As shown by thle decision of the Supreme Court of the United States, these courts inl orto Rico could not be authorized )by the President to pass upon rights possessed(l l the United States, nor could they le giveiI jurisdiction in admciralty matters. Theirt powers must be contined to internal and domestic imatters, such as are controlled by tll laws regulatipg the personal relations which the inhalbitants sustain to each other al itndividual members of society. (Xovr0o111 C( laiborne as the head of the military governmenllt in Lottisilana and AMtajor:General Jacksonl as military governor of East and West Florida, in time of peace, exercised the powers of tie leg'islative and judicial branches of the government. Jlackson declared enacte(l llarge number of statutes, several of which were subse(uelltly rel)ealed by Congress, and as the supreme court and chancellor of the territory he heard and determined al number of cases brougllt before hini. But it is important to remeimber that Congress by legislative enactment had authorized the exercise of the leoislative and judicial power by the executive branch of the mlilitary governlent in Louisiana and Florida. 31 CUBA. The, conditions existing in Cuba differ materially f romi those prevailing' in Porto Rico, as do also the pow~er's of the 1inilitarvgcov-erntnent. The, sovereigrnty of Spain has been withdrawn fi'oin Cuba. butt the sovereignty of the United States has not attlached thereto, andthed sy ereignty, declared by Congress to be possessed by the. people (it the island, remiains dormnant. -Unider these conidit~ionisthe miilitary.A'overN-(,~ ment of Cuba continues- to be a, substitute for sovereignty. ta~ thougoh the question of sovereignty were still pending the outcome of a wvar. It appears t~o the writer that under this condition the military (2overnment of Cuba miay exercise such powers of sovereignty as are neces.-~sary for the successful conduct of the, internal affatirs of go'vernment, subhject to the restraints inposed by the ideas and theorieIs of gooVcrnm1ent, prevailing under the sovereignty by which it was created and the orders of the superior officials and authorities of the sovereigrnht by which said mnilitary gov~ernmient is sustained. (Regulations for" United States Army,- Art.. VI, sec. t.5.) It miust also be considered that the purposes respecting, Cubha for which the war powers of the Gov-ernment of the United Stcates~ were called into activitv and the militarv forces of the, United St~ates s,-ent into that island are not yet accomiplished. Congress, in the. exercise of the great sovereign power's possessed by the United State-s as Ia member of the family of nations, directed the commander in chief of our military forces to employ the military branch of our G'overmen101t (a) to compel Spain to relinquish sovereignity in Cuba; (~) to etlec(t the pacification of the island; (c) to enable the inhabita nts of Cuba to establish a -stablele independent government. Trhese, l)t11poses were declared and the order- for- their accomplhishlmient issued to the commander in chief by the adoption of the- following resolution: JOINT RESOLUTION for the recog nition of thle indepenidence of the People of ("hI. ab,11'temaning, that the (.iovernment of Spain relinquish its authority and government inl tue island (1f (ii land1( to withdlraw its land and naval forees from Cnha and Cuhan waters, aind directing thle Pre-ident of the Viiitedl States to ulse the land iind naval forces of tue United States to carrv these(. rt-o hit ionls inito effect. W\hereas thie abhorren~t conditions which lhave existed for more thian thiree ye(ars in the island of Cuiba, so near our own borders, have shockedl the moral sense~( f tffle people of the Unitedl States, heave been a disgrace t~o Christian civilizatioii. cui-iiim-iting, as they have, in the, destruction of a Un iitedl States lbattle slip with twi.) liuniolr( and sixty-six of its offhcers anti crew, while o~,n a friendly visit it the(- harbor, of 1-avana, anti c-an not longer be etndureti, as hias been set forth. by the, Pres~idenit i f the United States in his mnessage to Congress of April eleventhi, eighteeni humoireul awl ninety-eighit, upon which the action of Congress wa~s invited: Therefore,, Resolred b~y the 5Sentte and Iloitse of R~eprev-entoive~s of the, United S'ofites, c4 A etoitl Congress assemibled, First. That the people of the island of Cuba are, andt of right ought to be, free anti independent. 32 Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters. Third. That tle President of the United States be, and lie hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect. Fourth. That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people. Approved April 20, 1898. (30th U. S. Stats., pp. 738, 739.) Let us suppose that the Crown of Spain had seen fit to peaceably relinquish sovereignty in Cuba and turn over its subjects in the island, their personal and property rights, and the public property belonging to the Spanish Government situate in Cuba, to the care of the United States, relying upon the declaration of Congress that the United States would accomplish the pacification of the island and erect therein a stable. independent government. Would not the commander in chief of the military force charged with carrying out such declaration rightfully exercise such powers of a belligerent as were necessary to accomplish the undertaking? Instead of pursuing the course supposed, Spain elected to go to war. Congress thereupon declared the war existing, by the passage of the following act: AN ACT declaring that war exists between the IUnited States of America and the Kingdom of Spain. PBe it eoacted 1b1 fete SenatTc o Ho1se ofe ]Replresef.taetives of the Uni'ted States of Am)erica. il Cbonges.s tessembhle(d, First. That war be, and the same is herelby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domnini eighteen hundred and ninetyeight, including said (lay, between the United States of America and the Kingdom of Spain. Secoind. That the President of the United States be, and he hereby is, directed and enmpowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this act into effect. Approved April 25, 1898. (30th U. S. Stats., p. 364.) As directed to do by this act, the Commander in Chief of the Army and Navy proceeded to carry on the war so declared to exist, and compelled Spanish sovereignty to withdraw from Cuba and the Govern ment of Spain to sue for peace. This war was a mere incident to the accomplishment of the purposes declared by the Congressional resolution of April 20, 1898. It was an obstacle encountered by the Comulander in Chief in carrying out the order given him by Congress in 88,-aid res-olutiion. But saidl order wvas not complied with nor the work ended to which the people of the Lmnted States had devoted the, Armly and1(,lv whenl Spanish soverejonty was exple.Tepcfciil of the islalic was5 vet to be etlected. The priejutices. alninvosities, hatr-e(k. Strifes, resultingo from mlany vears,- of internl warfare,1were to 1he allaved an(1 the inhavbittants moldled into a homloo-enleouIS Whole Onl which t-he foundations. of a nation mighlt, rest, anid thereafter go-vernhllent, constructed which would(l ive to the island andl its in1hal itants peace, prosperity, and the largest degree of hib)erty conisistenit with the maintenaince of individual rights and collective, tranAsfrom tine to time, the s;overeignty of Spain was forced to abandon the various sections of s~aid island and the territory became suI~ject to military oc(cupation 1y the, forces of the United States there was installed a grovernment of civil affairs inl said sections, wherebyv was maintained the. proltectionl of individual and property rights for which governmients are established. Evenltuallv saidi govermnent extended over the entire, island. If the doctrine is correct that a military government is a substitutte,;O(1 c)ipuu for sovereignty, and further, that the purposes for -which the military forces of the United States wvere sent into Cuba are unIcomplPeted, it woul(1 seem to follow thlat said military orovernmient may properly exercise the rights of a belligerent without reg(-,ard to the fact that the wvar has ended.a Speaking of the powvers exercised by the officer inl comlmand in, Texas under the reconstruction. acts', the supreme court of Texas saye: In Texas this officer exercised powers legislative anid executive, it not jud~icial. (Daniel v. 1 Lutchieson, 86 Texas, 57.) 1in the same case the court, say: Thiat the State was gerelby miliitarv law, even thouigh its own laws may to some extent have lbeenl recogized and -adllinisteredl muti 1)e considlere(1 an establishied fact. The power of the Uniitedl Stlates Giovernlment to impose such a rufle upon the, State must b)e recogniize(l as fully, ifnder the facts existing, as. though Texas bead theretofmj.e hbeen ani indlependent sovereignty, havinig no relation to the Unitedi States than th~at usu~ially sustained hby one irolelendlent nation to another. Civil war haol existe (l f magnitudie seildon execeo~led resulthin in the overthrow byv force of armis of the cause the State had espoused andi time occup-lation of her territorWv bv a hostile armyv. This occupancy was continuedl, and under the laws of war furnished groundl for the establishmenit of military law. (66 Texas, p). 60.) aIn letter to Secretary of War, dated September 8, 1900, the Attorney-General srvs: " Cuba, therefore, righ-Yltly continues to be gov~erned under the law of belligerent rih.***According to the law of belligerent right ***the conqueror inay make such new laws, rules and regulations as hie sees lit." (See p)ost., 3370.) 34 In another case the supreme court of Texas, in speaking of the reconstruction acts, say: The National Legislature used its legitimate powers with moderation andl magnaninlitv, ell(leavore(l to encourage tile formation of repulllican governments il tlese States 1al biring tile people back to a due appreciation of the law and of tie liberty which' is secured( to the free enjoyment of every citizen under tle Constitution. (-:3 Texas,;570.) It is true that the authority to exercise the legislative and judicial authority was conferred upon the officers in command of the several military districts created by the reconstruction acts, by Congress; yet when the war powers of the nation are called into action, the Commander in Chief of our military forces may confer a like authority, in territory affected by military operations, upon the military collmmanderis. IV. SHOULD CONGRESS BE INVOKED TO ASSUME DIRECTION AND CONTROL IN THE CONDUCT OF THE MILITARY GOVERNMENT OF CUBA! If the President of the United States were not the Commander in Chief of the Army and Navy, he would have little, if any, authority to participate in the government of civil affairs in Cuba. Such authority as he possesses in connection with said government belongs to and is to be exercised by the Commander in Chief of the military forces of the United States. This results from the fact that the only powers of the United States which anyone is authorized to exercise in the island of Cuba are the war powers of this nation; and the only instrument or agency of the United States authorized by Congress or by our theory of government to exercise said war1 powers in Cuba is the military arm or branch of the Government of the United States. As a general proposition, it is true that wherever the sovereignty of the United States attaches the Congress may prescribe the ways and means, the manner, and methods by which such sovereignty is to be asserted. This presents the inquiry: Hias the sorereignty of the United States attacked to Cuba? Did not the resolution of Congress passed April 20, 1898, recognize and declare that the sovereignty of the island was in the people of Cuba and further that the United States disclaimed the right or intention of securing, assuming, or exercising sovereignty in Cuba? Is not Congress, by its own acts, estopped from legislating in regard to the affairs of civil government in Cuba? The character of the military government now being maintained in Cuba has been discussed at length for the purpose of showing that it continues to derive its powers from the laws and usages of war, if not flagrante, at least nondum cessante bello. If this proposition is co)rrect, it follows that the Commander in Chief in conducting said gove:nment exercises the right of a belligerent. In other words, the operations of 35 said grovernmnent are to be considered as being the sMame as the m1ilitary opeatiolis of a belligerenit. WVhat power has Con~gress to direct the operations of our iftryforces ei igagred in the conducet of a wvar in aforeign counltry" Chief Juistice C'hase' inl the, minolrity o)pinlionl inl L>v t Milligan.11 staid (4 Wall., 1:3): Congress has the power not. onily to raise andI snluport and1 govern armies, hot to (lecare war. It has, therefore, the iiONN-r to providle liv law for carrying o)n war. This power necessarily exten(1s to all legislation essenitial to the priisento of warI withi vigi r aulii success, cicet s'vch (isl wnc/rs'i/h the' colloldn lof H1Io' 1`orc's On d thn' Mlodect of cmiqpoiqns. That ipower andl (Iinty bhcl.)g to tlie Pres~ident. as Comnnander ini Chief. Bloth thiese powers are (lerivelI from the (Constitutioni, but mitciter is detineil Iiy that in-strimnent. Their extent must lie determinied hv their natunre, aiiui by tile pri nciples- of onir institutions. The power to make the necessary laws is in Congress; the power to exeenite ini thle Pr'esiident. Bothl lowers imply itan, sub(nhiirimate and auxiliary powers. Elach iinclodes all autloirities essential to its doe exercise. But neither (all tile Presi(lemlt, ini war mo(.re thian ill peace, iiitride ulioll tile proper autihirity of Congress, iini' Congiesil; 1)ponh(le }iiojii'i ((.ioit~i~l' of the Pr(yideit. Of necessity, a inilitarv gov~ernmient resorts~ to martial ruile, or mar11 -tial law.- Shouild Congress undertake to legislate for a m1ilitary grovemninent and prescribe the rules and regulations of its con(Iuct, Congress, would enteri upon the daingerous undertaking of giving to martial law the sanction and fixe(1 charaicter of legislative eniactmlent. Under ouir theory of grovernment martial rule, whether exercised by a military government or the military arm of a civil gov-ernment, arises f romi necessity, (eases with the necessity, aild (luring its coiltinuance its e-r act must be justified by necessity. Herein is to be found the safeguard againist the arbitrary exercise of military power in time of martial rule. The military Person exercising power under martial rule is liable to lie called before the, courts, after martial rule has ceased, and required to justify his action l)y showing the necessity therefor or respond inl daniages. In Mitchell 1'. Harmiony (13 How., 1 15, 134) the court sav: But wve are clearly of ojdnion that in all of tilese cases the (lailger must be iimiime(iate and imipemndilg, or tile mlecessitv urgent for tile pulilic service, such as will not admit of delay and wllere the action of the civil autllority would he too late in providing tile mean~s which the occasion (cails for. It is iminpossihie to (lefirie tile particular circumlfstanees of (langer or necessity iu which tilis power may he lawfully exercisedl. Every case niust depend on its own circulllstances. It is tile emergency that gives, the right, and the emergency miust he shown to exist before the taking can be justified. But if Congress has the authority and shall exercise it and make martial rule the subject of legislation, then the justification of the acts Pf persons enf orcing m~artial rule becomes a question of law and not of necessity. The legislative act would be a justification which could not be impeached, and the person injured would be without remedy. (Cooley's Constitutional Law, p. 148; Griffin t.Wilcox, 21 Ind., 870;;' 36,Johnson ',. Jones, 44 111., 142; lHare's American Constitutional Law, vol. 2, p. 96S; Ponieroys Constitutional Law, sec. 709 et seq.) If Congress regulates the exercise of that military power oxver civil rights which we call martial law, the m1ilitary person wio acts within the lillits of such legislation would b)e protected by it, for the act of Con-gress would le an exercise of its politic'al pow er, and the necessity tiherefor or the expediency thereof could not be inquired into by the CO(urts. liennett's edition of Pomeroy's Constitutional Law lays down the rule as follows: This military law-or, in other words, this code of positive, enacted, statutory rules for tlhe government of the land and naval forces-is something very different from martial law, which, if it exists at all, is unwritten, a part and pIarcel of the means and methods b)y which the Commiander in Chief may wage effective war, something above and )beyond the jurisdiction of Congress; for that l)ody has no direct authority over the actual conduct of hostilities when war has been initiated. (Sec. 469, p. 385.) The same author further say1s: When actual hostilities have coiimmence{d1, either through a formal declaration made by Congress or a belligerent attack Imade by a foreign government which the President must repel }by force, another branch of his function as Commander in Chief comes into play. He wages war; Congress does not. Tile Legislature may, it is true, control the course of hlostilities in an indirect manner, for it must bestow all the military means and instruments; but it can not interfere in any (irect manner with the actual belligerent operations. Wherever he the theater of the warlike movements, whether at home or abroad, whether on land or on the sea, whether there be an invasion or a rebellion, the Presidentt as Conmmander in Chief must conduct those movements; lie possesses the sole authority and is clothed with thle sole respolnsil)ility. (Sec. 706, p. 591.) PIILIPPINE ARCIIIII'ELAGO. The Philippine Archipelago was not included in the Congressional resolution approved April 20, 1898, and the military goyernment established in those islands was originally an instrument for promoting the vwar with Spain. Although the United States has acquired the rights of sovereignty over those islands, it has not entered into peaceable and undisputed possession thereof. In establishing that possession it encounters an armed insurrection, against which it is conducting military operations and with the forces of which it is engaged in active hostilities. The nilitary government of the islands has been continued and is now utilized as a means of suppressing said armed insurrection, and therefore is authorized to exercise the rights of a belligerent. The Secretary of War approved the views set forth in the foregoing report, and the policy of the War Department, in respect of said military governments, has accorded with the principles discussed and conclusions reached therein. I37 [(Case No. I.1.1, Division of Insular i Ai Y irs, War D' lartlmenut.] LEGAL STATUS OF THE TERRITORY AND INHABITANTS OF THE ISLANDS ACQUIRED BY THE UNITED STATES DURING THE WAR WITH SPAIN, CONSIDERED WITH REFERENCE TO THE TERRITORIAL BOUNDARIES, THE CONSTITUTION, AND LAWS OF THE UNITED STATES. iSillmittd(1 Flebiruiry 12. 1 (.1 )O. i'rilte(l t s a War I)Delar(tmenult publi(itii)n t y ()rde r f tl Secret n ary i of W (ar. Pri'ltc1is a 1 SIllt(i Document( t (t (\ editionsl) )y or(der of thle Sealte, Fiftv-sixih ( 11(nir ss, irst sssion, Do1))'. No). 231. By or(leir of the I [euse o(f lcptresenttti i s ( es. No. 197, Fift v-sixthl ('oilgt'ress) 10),00 adt(litiollal ('(cpies were plrinte(l for tile use fe tli e l[(use.] Sit: I'l rlespolnse to vollI re(qulest, I1 have tie, hiollor to repor't 1po)01, tllhe follo)wil' (luiestionls of law: 1. I I lve- thll territorial I)otl i<lhlries of tlle lTlitel Stlates )been( exte'd(led t) (1l,,embraceI thle islad,,s of tlhe IPhilipl)i,(e Archeli)(lago'( the islal (of (ttii, antd( t lhe island of P)1orto Rico. '2. Ate said islands an,,d the(ir' i,,hal)italts )bound(t and 1( ()efitedtte(l. privile(g(andl e (e ((,ndlitioll((l b)y tlle provisiolns of tl(e (Colnstitutionl of the Unllitedl States O. I Ias tl e ColgICress )of tle Unit(el States jurisli(cti)onl to le(''islatc e ft'o said isladlts a1(nd thel( i,1llalittaits ' 4. Atlust s.ltch le(eislationl (on form to tli(e con(stittttion,,al requi(iremen(ts Iregat.!'(lil te' t itoryl wvithliii thl(e )(boundar('ies tof tlhe s(veral States of tlle Uniit(ed States a111(d citizenls (lomliciledl thel'(i,, t 'he po)we\' to extend Or (contrlact tlhe territoiatl 1oun(tdaries of tlhe U:,it(ed StLates is vested( inl tle,political b)ranch of ollur (overi(iientt. to) wit, the two tIouses of (Coll(rless lt'tinll' with the appro)l val of tlhe Ex(cultive. It is Iot to be exercised b tlihe Pl'lresident. e(ither a's Chief Exec,(tltive( or as (Com),,tlander il Chief of tle llilitarv forces. The ter',itoriail o )Olltt(arie(s of thle I',itted States do inot advanle with its succe(ssfuIl armies no()r rel'tire lfore an invaditg' foe,. (Flemill, g et t al... 1 'ta(,' H) how. (lU. S.), 0:-)3; United States,'. Ri(e. 4 Wh(eat. (,. S.). -4(;.) The Un1lte(l States derives the right to a(cquire territory fr'o(I tlhe fact tlhat it is I nation; to sp)leak li1or0 (lefiitel-y, s ov(reig'l tiation. Such a nationi 11at l is a ii,,herenl(t riglit to (ai'(ttlir territory, similar to tile ineiie,'ent ri'ght of ) pers(,on to acq'(ir( l)'op()ert't (A.(1American I1ns. Co.,. (Catnter, 1 1)eters, 54 4I'; Mornon Churtch,'. Uniited States, 13(; V. S., 1. 42.) Il fact, the territory, i. (e., the sttretchl of c(u)lltry', when acqtllired by COIqll(test, treat, or (discovery, is at first a1 possession apl)pertailling' or p1)roper'ty belongingl to the United States. The sulbsequlet erection therein of ta 1olitical entitv or g'overnllent, whether State o0r Territorial, andt the bewstowal of citizeinship lupol tle inlhabitalnts 'are acts of grace0 on the part of the new owner o0r sovereign. Such a(cts of 1'rlce 38 are sometimes stipulated for with the former sovereiglL, as was the c(ase in thie instances of Louisiana and Upper California, or omitted, as in the instance of the islands lately surrendered by Spain. The opportunity to extend the hboundaries of the IUnited States nmna })e (fforded Congress )by the successful conduct of:a war 1i- the Executive as the Conlmander in Chief of the Army 1and Navy, as in tlle war withl MAexico; or )by diplomatic negotiations, as in the instance of Louisiana; or by the proffer of the constituted authorities of the territory, as of Texas and the Hlawaiian Islands; or b1y discovery, as of the Navassa Island; or biv prior and long-continued occupation, as of Oregon. 'I'he opportunity )eing afforded Congress, that }body acts Las its discretion detelrmines. It nimay accept or reject as it sees fit. It was only after several years of deliberation that Coingress completed the transfer of the Floridas and uttterl- rejected the proffer of Santo l)omingo. I)uring the progress of the debate in the tHouse on tle Louisianlla putrchase treaty Mr. (. Griswold said: If the right of extending our territory be given by the Constitution its exercise is vested in the legislative 1branc)es of the (Governlnent. (Annals of Congress 1803):-4, p. 433. ) John Randolph, of Virginia, salid: If the Government of the United States possess the constitutional plower to ac(iquire territory from foreign states, the E1xecutive, as the organ by }wh.ich w-e comnunlicate w-ith such states, must e the prime agent in negotiating such an acqluisitiOn. Conceding, then, that the power of confirmning this act an(d truae.in to the l oited Slto(tes the territory tl.os a(cq uired ltimte(ely re.ts i'ith C(o,,gre..s s *. (Annals of Colmgress, 1803-4, p. 436.) (onogress having determined to accept the proffer of territolry-, nay follow- one of several procedures. In the instance of Texas the course putrsued was to incorporate the existing State into the Union upon a footing of equality with the other States thereof. In the instance of the Havwaiian Islands the right was exercised Jl! passing a joint resolution. In other instances the acq(uisition of territory was m1ade by meanns of treaties duly negotiated and therealfter ratitied I)y the Senate, approved ~by the Executive, an exchagtle of ratifications had tanid proclaniation mlade, whereby the U'nited States l)ectame b}ound lanld its national honlor pledged to carry out the stipulations of the treaty. But ill mlany respects a treaty is not self-operating. It flrequently happens that a treaty stipulates for that which canI only be a(coImp)lislhed by Congressional enactllent; ill which case Congress, i. e.. the Senate and House of Representatives, mlust exercise the powers of legislation in regard thereto before such stil)ulation is effective. The ratification of a treaty }by the Seinate crecate, a contract but does not c.recutte it. When a: treaty req(uires legisltti-e enactllmenlts before it can becomle operative it will take effect as a national 39 comllpa(ct on being pl'oclainled, b}ut it can not 1)ecolle operative as to the )airticular engagements u*ntil the re(quisite legislation has taken pla(ce. (Foster et al. v. Neilson, 2 P'eters, 253, 314-315; United States?'. Arledondo, 6 Peters, 6('l, 734-735'; Op. Atty. (-en., vol. (, p. 750; also id. 1.. 296.) The trleaty with Great Britai, London, 1 794, negotiated b1y TJa duling Washington's Administrationl, was the first concluded with -a foreign power )by the United States under its present form of governme0nt. After its ratification this treaty was comlmunicated to Congress for the information and guidance of that body in preparing the legislation necessary to render the treaty effective. The House of Representatives took the position that the assent of that body was necessary to ther,,idily of a treaty. This was controverted by) Piresident Washinlgton anld receded fronl by the HIouse. (Annals, first session Fourth Conglress, pp. 759-772.) Subsequently' tL resolution was introduced in the House that provision for rendering the treaty effective should be made 1b laIwN duly enacted. 'This gave rise to anl animnated debate, but the resolution passed by a vote of 51 to 48. (Annals, first session Foulrth Congl ess, p. 9!4(.) T'Illis question was also discussed in (connection with the legrislation fo c('arry!-ing into effect the treatty relating to the purchase of Louisiana. (Annllls, first session Eighth Congress.) Iln lS16 the Senate passed an act to carry into effect the commercial conv-ention of 1815 with Gireat Biritain. The act provided that so much of any' existing act as might (be contraryl to the priovisions of the convention should cease to b)e of force and effect. The House passed an act. in several sections, enactinlg s,,i;,Wt;l// the provisions of the treaty. The Senate claimed that the treaty was operative of itself, and therefore the act should 1)e declartatory only. The House insisted that legis:lation was necessary to carry it into effect. Each bod- refused to recede. A conference committee agreed upon a }bill which was then enacted. (3 U. S. Stat. L., 2.55.) The principle upon which an a'rieement was reached was reported to the House tas follows: Your committee understood the committee of the Senate to admit the principle contemled for by the House that while soime treaties might not require, others may rejllire, legislative provision to carry theml into effect; that the decision of the questioll holw far such provision was necessary must }be founded uponl the peculiar character of tle treaty itself. (Annals, first session Fourteenth Congress, ). 36.) The subject was again before Congress when the }bill llmaking appropriations for the purchase of Alaska was under consideration (1, 2, 3, 4, and 5, Globe, second session Fortieth Congress), and was disposed of })- the House accepting from a conference committee a preamble reciting that the stipulations of the treaty "that the United States shall accelt of such session * ' ":'- can not b)e carried into full force and effect except by legislation, to which the consent of both Houses of Congress is necessary." (15 U. S. Stat., 198.) 40 The report of the conference committee was adopted by the Senate and House of Representatives, and thereby Congress declares that the cession of territory to the United States must be effected by leg-islative enactlment; that is, the assent of both Iouses of Congress lmust be secured. At the time the Constitution was adlopted 1by the thirteen original States many of thel clain lied to own unoccupied territory, ill somle cases entirely dletached froml the State itself. These claims were in some instances conflicting. Several States claimed authority over the sallle area. Thel ownership of these western lands by individual States was distasteful to those States which (lid not share therein, mainly ol the ground that the resources of the (General Governnlent, to which all contributed, were taxed for the protection and ldevelolpment of.said regiolns, while the advantages inured to the benefit of l)ut a few. On this giro und several of the States refused to ratify the Constitution until this matter had }eenl settled by the cession of tlese tracts to tle General (overnmlent. Iove'd bv} these argumentlts and b)y the consideration that the confllict of claims was pregn'ant witli serious difficulties, Congress, by re(solulti(n of ()October 3, 1779. re(quested several of the States to forbear settling or issuilng warrants or grants for said lands. This was t.ransmllitted to the different States. The several States claimingl to own sai(d lan:ds respl)onded to this request by tyransfers of the territory so clailed(l to the (General (Governmlen1t. The first transfer was made by the State of New York on March 1. 1781. and the latst by tihe State of (:eorg'ia April 24, 1802. A single instance will serve to show the course 1)ursued. The general asselmb)l of the State of North Carolina p1asse(d an act entitled "An act for the plurpose of cedigi to the United States of America ce(rtatin westelr lands therein describled." Pursuant to tile tautthority created sad, li(l act Samnuel Johnston and Benjaml I aw\kins, at that tinle United States Senators fronm North Carolina, executed at deed of cession of said lands to the United States and presented the t samllle to the Senate of tlhe Unitdl States. There-( upoI the Senate and Ilouse of Iepresentatives passed "An act to accept a cession of the claims of the State of North Carolina to a certain district of western territory." This act recited tliat ' a deed of (essioim lhaving beemn executed, and in the Senate offered for acceptance to the United States of the claims of the State of North Carolina, to a district of territory therein describ)ed, w(hich deedt is in the words following: ' '' Be it o(c<tedl,!/ th!,l e Senltile <id JIoIse of Repr'I)'st('ltiri 'es of the 1U itedl,fhttx s o/ f l,l'ri'ica in (oTI/rex.s tssemhle(l, That said deed be, and( tle salme is hereby, accepted. Approve(d, April 2. 17'90. (L U. S. Stat., chap. 6, pp. 106, 109.) It would s(eem tllat if C0ongressi(nal legislattion were necessary to complete the incorporation of territory into the United States lupon 41 transfer froll o(ne o)f its Conll.olnent States, s c(1 (ollngIrelsio)lal action wouIl(l 1)e e'qually lecessal' wher' e a transfer is foo t aforehign State. lThat it is Ict(essary to secutre the assenlt (f ( ongress ill o(rder tlhat the territorial ),lboldarlies of the' ['Inited Statet's llav 1be extended to include the isladt(ls cedeld the late treaty o)f pe'ace with Spain (Paris. 1_S)), and thalt said ti''aty ldoes.Iot attempt to make. uch extenllo.in, is11 made1 plaill 1y Ia co(0lparision of said treatv with Other treaties of Cession to the Unitedl States.. and the pw1) edure followed( l ill re'(ard th)ereto. The treaty for tlie cession of Loutisitana oitailned tl(he followin,, stipulations (8 t. S. Stat.. 21}0-2}2): The First Consuill f tihe FreInl( I lt'1)II li c, ldesiri'ilI to v(X to ) t he II lited Sltiat(. stronig p1'-of of his frietillsilip, (10oth 1('re y ce (de to I tlie ittel States, il tllie name of tile I lreniilch Republic, forever and in full svcrSeignity, tly e sai(I terrlitry, it illI a its rights and appurtenances.;: The inlliabitants of the ceded territory slihall be iilollrplranted in the Iioll, )f til.' Iluite(l States, a 1 a(lillitted( as s(o()nl as pl)ssil(le, aic(.'(liiil t) to tlie pr'ilcil)le's () tlhe Federal (onstitution, to thle elljoymelit ()f all tlhe irigits, advantalt e, an1ll itimmtii iliti's of citizeis (of tlie 1 Inited States; 1and ii theil il1liantilme tlhe s11ill be Illailitailled allnd protected iin tle free einjuoyiient of their li)erty, l)property, 1and tue religilol tl)hey I"profess. (Articles I an1(l:), Trenat witlh lFrance,. ISO():.) 'The t'(reatv of amitv, settlementit., and limits 1(etweenl the United States and Spain (ISl )). whereh)y was co)tirned th( title of the liit( ite States to t]he expl)aillse of colltryt kniown ais East attl( W(est IFl()i(Iti (lltli 11tain thle f1(llowin, stipulations (S U. S. Stat., pp. 254 and 235;): Au '. 2. liis (atholic MIajstv cedes to thle I lit(Il States, io ftltl jn'1 l flll/f ant1 ll s1oXtoi tissillppi, klowvn by ttilpe l mo e ()f Flast, ald West Flori(la. ":' ':" * j JAT'. 6. Tie inhablitants of tl e territs wies which His Catholic dIaje,ty te es tho tle lUn.ited(l States 1)y this treakty anplle h e,, i(,',}ortt i. /he' [,;oita,f {l, I;/,/ i'ltte., ati ep Ul 111as its ct siste lwt witle tle principles of tlee Fe1t(teral (ostituti\on, allI ad( ittedt to tlhe en j ment,)f all the privileges, rights, anl illtlunitie s (,f tlhe (itizetll of thle dUited( State os. Inl tili treaty of 184S, wlerel)y Mexi(o () liuis(( tle(', eaXp(lIa e ()of couttntry lowil nl as 'pp)l)elr (ldifornia andl New Mexi(o(). re(sort was hatL to tlie simple pl(ta of d,..,,/i,'f;,.! f.,',,, l,,,,<,,t/)', f (/// A,, _ /;.,,', t)hea l. Thoef rtIeaso for tllio Tas t s t t th(' lited State.s toolk tIle lp(siti(,o that, halviwo- taken and o(culpi(e tlae (al)ital of tle( MIexica 'RepuIli(c, its title( was 1)erfected b c(m)plete conquest. not olly of Upper C(alifornia and(l New Mexic(), lbut of thle lenti el Republi. and(l the (luestionl to he determinedil lwas hlow 1tmuc.h sh()tl(l I)'e r(estored(l v the United States, not how tmu(-II s}lould 1( (cded 1),- -xi.(co. ]I(,inl' 'vanquishe(d. IMexico was.)olliged to assent to the prolposition, and hence(' tlie adol)tion of the plan followed. The tre(aty contained the followinl(o stilp)ulation (9. S. Start..!.',): \ARIT. 9(. Tlhe Iexi(cans who), in t te tritories af)oresaid, slall not p)reserve t(he ch(aracter ()f (citizens ()f tv, mIexi.an I'rielpl ia(, (.iwformalvl withl what is stilpulate(l in tle 42 precedin- article, shall lbe incorporated into the Union of the Uniited States, and be adlnitted1 at the proper time (to be judlgedl of by the Congress of thle United] States) to the enjoyment of all the rights of (citizens of the United EStates, according to the princilples of the, Constitution. Trhe treaty with M'Nexico (1853), wher-eby the United States acquired the, terr-itory known fas the '" Gradsdeni Purchase," was, primarilV, a1,stilpula-tion as to bonay.Atcl 1 provided as follows (10 U. S. Stat., 1032): Thle 'Mexican Republic agrees to designate the following as her true liinit~s with thle United States for the future: Then follows -an exact dIescrip~tion of the location of the bounidary line anid how the. samne shall be surveved and marked. Said tarticle continues': The dlividling line thus estalblishedl shall, iii all time, be faithfully respected by the two GToverninents, without any variation therein, unless of the express and free c-onsenlt of thle two, given ill co nformnitv to the principles of the lawN of nations and in accordlance with thle constitution of each country, reslpectively. The treaty with Russia (i),whereby the U~nited States; acquir-ed Alaiska. contains the, followingr stipulation (15 UT. S. Stat., 539. 541, 542): ARTRIcE 1. His 'Majesty the -Emiperor of all the Russias agrees to cedle to the UInited S4tates ***all the t(rrittoryl ((0( d/oini??io now lpossesse(l b~y his said M.Najesty on Vi e continent (If Amierica, andl in the adjacent islands, the same being contained within the geographical limits herein set forth, to wit:*-* Anir. 2. In the cession of terr~tol'y (owl do(/00000 imade by, thle jprecedling article are inchluedi the rights of property of all public lots, * ** hich are, not private i~i~lividlual p~ropertv. Awru. 3. The inhabitants If the cedledl territory ***shall be admitted to the -enjovmient of all the rights, advantages, anll imnmiunities of citizens of thle Un~ited States.*** What was accomplished by tariticle 1 of the treaty ceding, Alaska, upon the treaty befing ratified and exchanged, is stated by Dawson, J., a~s follows (29 Fed. Rep.. 20-5): tponI the ratification by the President of thle United States, by and -with the advice anul conseiit of the Senate, oii the one part, and onl the other by 1his 'Majesty the Eiiperor of all the Russias, andl an exchange of those ratifications ***the title of tihe soil in Alaska vestedl iii the United States. (U.nitedl States r. Nelson, 29 Fed. Rep)., 202, 205.). Trhe expression "-the, title of the soil" as here used means the right of the sovereign or ofJ.phicm ot the right of a proprietor or of pis~ jn'iiutuhm. The extension of the boundaries of the United States to include the H awai ian Islands was accomplished b y (1iplomatic negotiations, con - sunima~ted by the passage, by the Senate and House of Representatives, and approval by the President, of a joint resolution reciting (30 U.. S. Stat., '750)That s-aid cession is accepted, ratified, and confirmied, and that the said Hawaiian Is-;lands and their dependencies be, andl they are, hereby, ololexed(ios c part of the Il'errtor/ of the United, States and arc subject 5z the sovereign dominion thereof. 43 It would ble a worlk of s.upererolgation to follow ill detail the nlumerols a:cts of Congress wherelby the v-arious provisions of these several treaties were carried into execution:and the oullldaries of the United St:tes extended to include the territory to which the treaties related. Ill eachl instance, however. it was accomplished tby somethinlg more than entering into 'a treaty, although the mlanifest purpose and intent of tile acquisition were to i'nclutde such territory within 01ou' b)OtlIudaries land such actionll was plainlyl c(nltelmlatedtt ill the tlreaties. The stipulations of the treaty with Frllance (Louisiana putrchase, 18(-3) were made effective in anld upon tihe Ulited States by two acts of Congress. One was "Alil act to enable the 1President of the [United States to take possession of the territories ceded b)y Fran(ce to the United States b1y the treaty concluded at Paris on the 30th day of April last; alnd for tlhe temporary gove'rnment thereof," approved October 31, 1803. (2 U. S. Stats., 245.) The otlher was ";IAn act authorizinlg the creation of a stock, to the ItImount of $11,250,i000, for the 1)urpl)ose of ca'(''jin int)o (ect the c(nvention of the 30th of April, 1803. between the United States of America an(d the French Replublic. * *" '." al)proved Novenmber 10, 1803. (2 U. S. Stats., 245.) Th'e act of October 31, 1S03. was:s follows: ]e, it ciateled lbyl l/c h Se/)mf(e (ti //I ion.' it f s ],ef. seJef/tif<'s (/ { )e h ied States of. Moef ica in (')1r, (/ir.'. ss'mb1ed, That thel Presidlent of tc I lUnite(l States b)e, and lie is herel)y, authorizeil to take lossession of an(l oc.cupy tlhe territory (cededt 1l) France to the United States b1) tlie treaty concludled at lParis on the thirtieth day (1f April last letween tle ttwo nations; and thlat lie may f/or that pur)llse, and in order to maintain in tlie sail territories the antithoritv of tlie Ullitedl States, eimplhy any part of tlhe Ariy anI(l Navy of tile United States, all / of thle force autlorizet 1yv an act 1passed the third day of Marlch last, intituledI "An act lirecting a detachllent fronm the militia of tl/e U ited States, andl fo r erecting certain arsenals," which lie may d(eem neicessarv; and sio niuch of the sumn al)pr/opriated for thle purp)ose o/f carrying this act into effect to l)e applied under the direction i/f tlhe Presidlent of tlie United States. Si-Xc. 2. And be it furthe, eerCted, Tl/at until tle expliration of the preseint session of Congress, unless lrovision for the temIporary g/(vermlllent of tlie said territories )e sooner made )y Congress, all the militarv, civil, and judicial powers exercised })y the otlicers of the existing government of tie sallie shall be vested in such person and persons, and shall be exercised in such manner, as thle Plresident of tlhe United States s}hall direct for maintaining and protecting ti/e inhabitants of Louisiana in the free enjoyment of their liberty, property, and religion. Although Congress had thus legislated directly for Louisiana and the inhabitants of that country, President Jefferson (lid not consider tlhe territory bound and benefited by the Constitution, nor the inhabitants entitled to the rights, privileges, and immunities guaranteed by the Constitution to the inhabitants of the United States. Upon the passage of the act of October 831 1S03.,Jefferson sent colmmissioners to New Orleans to secure the transfer of possession. lie also authorized one of the commlissioners, Governor Claiborne, to exercise the powers theretofore possessed by the Spanish governor-general and tilhe Spanish intendant of the territory. [Tnder the Spanish regime the governor-general of the territory had almost roval authority. Ile 44 prolttlgalted or(dliilances whicih had the force of statutes, applointed and remllloved at 1)leastre colmmandants over local subdivisions of territolry. al: 1)resiidle( over the hioi1est colll't. I'h illtendatt, however. was a collllter'l)oise. Ie acted as a comptroller, and p)aymenllts could b)e m111de by the pul)ic treattsurel.r ol y onl his warrancl t. Ie was alo' judlge of tlle courts of ad!llirllty andl exchequler. (See Pu. I)oc.. stl (o)ig' Ab)str(act of I)oulllents ill thle ottihes of the I)epartmtll(t of State at1(i of thll rlleasury, N\Ov., 18-03, pp. 33-41.) A. code of laws, Illn'imv of whichll we'( repu) nant to till Constitutioln of the [Tritcd( States antl tihe ilstitiltiolls of ouri (iovernmiet,, vwa s Oleft to 1)e a(lilliisterled or sull)cersedeld and rplaced c by others at the \will of one1 maln. itn ageilnt of the Fxecuttive. Theire waivls It religious estlablislhlice'nt. I\o() canoi(s and twenlty-five curtltes ireceived salaries filolll the 1p)ulic trleasury. (Putl. I)oc., Sth ('olng., Appendix 38.) ll1 travelers, pr)eviotus to circula'tilhtilng any lews of importtlice, were1o bountd to relate it to the svndic of the district, who was attithorized to f)rlb id its furtltler cilcila.tion if lhe tholughlit stch 11prolhilbition would b)e o t!he pubtlic good. (t i(lb., A pl)pe!(lix 71.) A son wlhose. father wtas living' co0tl([d not suel witlhoutt lhis conlsnt, iot0 1)er esols belong'ilg' to.a mligioits 1r (1(e1. without thatt of tlei ' suplerior. (I hid., Appen)lix 2S.) A ln:ta''ie(l \i(an c()l\i('te(l (f al(ltelt'y anl d her1 i)parao111(tr were to h1 delivered tpl) to tile will of tlhe litslaiml, withl tile reserve, lhoweverI, t lhat if he killed one lie m1tust kill b)oth. (1id., Appen(Ilix 46.) Ile who) 1v(i lc(dl the Satviour or tlle( Vi toin ftl' was to be 1pu)llishcd1 by Ilavin lhis tolte o ut out ta(d his lr,:)e'rty c.mitiscatel. (Ibid., Appendix 45.) The tleaty with Spai)i (.191!) eonftilmill. thile claimsi of the I llite'(l States to East:t(i(1 West I:lorida wals ILtified(l thi tle Senate Fel)bruilrv 1t, 1821. and therea(fter (C)ongress passed "An a.t for (,lrrvim,' into execultioll tle tlreaty between the 'United States an(l SpaIin," etc.. t1pp) ve(l \Ittrlch 8. 1s21 (3 1'. S. Stat.,;3). h'll territor!y so acC(ljti 'ed wals a:ls the sitt ljict of lMuchl other leg islation anld othler oflic(ial tactioll b) tile p1olitic'al l)xwers of otur (-clvermlent trealtillg it as 1beijll within the bonlt(lari(es of tlhe ( 1 nite(l States, S1u(h as creating tlherill the State of Atml)tlabna hr at atc't 1)asse(l Marlich 2, 1819, nearly to )( years priolr to tile manatieatiomi of the tl-elaty. Indeed, the 'United Stalt(s as l, ever conceded tllhalt it (llrived 'ftlc to tle Floridas flrom SpatinI. All that l)part of Altamilita wh}ich lies between tile thirty-first alldll tllil't-tiftll (legre'',s of nlorth latitllde \\was ('(1e(d1 y the Stat(e of (Geolgila to thle United( States y (Ideed eal ll'ig dLate the 24th dctit of Apriil, [Ls02," ad thile rema1itide(lr was acquitired tby the Louisiana plittlcl Iase. (lPollard's Lesse-e,. I ltatga et al., 3 1 low., 212.) 1'11(c l)oisinlls of the treaty with lMexico (1848) relating to the northeri bontlildalrv of tile Mexican Itell)pulic weree 11:de1 effective tts to tile United States 1 y legislation making apl))ropriations; For expenses ill rulnling and ItIarkiing tlhe l)oundllllary line b)etween tle U 'liteot States an(1 Mexico, marking the examinations contemilIatedI by tile sixtl article of the treaty of (;uadalnpelIidago.: * * * (9 I. S. Stat. L., pTp. 301, 541, 614. Id., 820, se' 'c.; 17. U. Stat. L., lpp. 17, 94, 149t. ) 45 T'1'1 pil"rpos of the treaty bectweel the tUnited Statves and11 Spain (ISS'a), as stated therein, iwas ' to endl tlhe state o(f war\ now existilg betweenl the two countries. B ein t lhe victor, the Utnited States dictated the termns aiid conditions upon which the wair wvould en(d. Thie situatiomn was ill malny reslpects thle same as ill the instanlce of the -wart with Mrexico. The lllmited St:tets lha1d captutred a1(nd o)cupied the provinciall capitals of Porto lli(o. te l'Philil)pines, anill the island of G(uam, and the Spanish forces therein had sllrrenlderled to thle force of American arms, a1nd these plr"oviilces were sll)lject to nilit.ary occuplitionl by the Americanl folrces'. Tills wais a s1 fticient,basis (,f good title for the United States. So lon as1t the United States continued to hold and occupy said islands leutratl nations imust recoglnize tlhe United States as possessed of sovereiglnty therei. As was said by the United Stt Stupt e S 'e Cotirt with regard to territory stilebected to milit:ary occuipation during tlhe' wtar with AMexico: It is true that when Tainpico had bleen captulred anll tlhe State of Tamaulllilas subjugated( other nations were b}ound to regard tlie c(mntry, while or )()Osse(ssiol (ontinuedll, as tle territory of the T'nited States, and1( to resipect it as suc(h; for, by tfhe laws and usages of nations, conquest is a valid title while tlle victor maintains the exclusive possession of the conqueredl country. * * * As regarde d by all other nations, it was a part of the United States, and beelonged to thlem as exclusively as tlhe territory included in our estlalistedl boldartie; 1,rt?1(t it t' s I10t (ta)art of the SUnion, for every nation which acquires territory lby treaty or conquest holds it according to its own1 institutions and laws; and the relation in which the port of Tainpico stood to the I'nited States while it was occupie(l lyv our (arml s lli, nolt dep)en(d ul)n1 the law of nlations, ult upon our own Constitution (ind (rots of ( '),),lrx).,. (Fleming?. Page, 9 11o,w. {(03, 615.) Such w\as tle situation as to Porto Rico. tlie Philippines, and Guam when the Peace Commission assenmbled(l in 1898. One requirement imade by tile American commission was that Spain should assume toward the islands mentioned the sallme position:s was occupied by the other nations of tle earth, which is that the territory bellonmgs to the United States, " bult yet it wais not partt of this Union," or ill('llded in our established boundaries," since these were matters which depend upon " our Constitution and the I't.v, of (`OI,',6.0." At the time of the peace conference at Paris in 1898 all the rights of Spain il the islands mentioned had not beel obliterated. The soveeiglnty of Spain therein had been displaced and suspended, but not destroyed. Theoretically Spain retained the right of sovereignty, but the United States was in possession and exercising actual sovereignty. Tl'le rights of the United States were those of a belligerent and arose from possession and were dependent upon the albility to maintain that posesession. IUnder the doctrine of postliminy the sovereignty and rights of Spain would become superior to those of the United States, if by- any means Spain again came into possession of one or all of said islands. The American commission therefore required, as a condition precedent to a peace, that Spain surrender this right of repossession. As regarded Ctubat) tile situation was a:nd remains different. The military forces of the United States had not captured IIHavana, the capital of the Spanish colony of Cutba, and only a relatively small po)rtion of that island was sulljeCt to mlilitary occupation by our forces. In addition, the Uniited States before invading Cu(1ba had disclailmed any intention of acquiring sovereign rights in said island. Therefore the occupation of Cuba in whole or in part by the Ililitarv forces of the United States, while it ilposed( duties, did not confer riglhts upon ourl Government. It follows that, at the time of the peace (oiilference in 198, the title of Sptain to (Cuba had not b)een divested by our military occupation. It was therefore necessary to require Saill to relinquish title in Cuba. This was done by the following provision in the treatv: AwrI. 1. Spain relinquishes all claimn of sovereignty over andl title to Culba. B3Iut in tlhe provisions of the treaty regarding the islainds in wllich the United States had secured and was assertilng rights of its own the language is different and the reference to title is omitted. To quote the exact words of the treat-: AIT.. Spain cedes to thle Unitedl States tlle islandt t Iluerto Rico t and other islands now under Spanisls sovereignty il tlse West Inllies, an(l tlhe island of (;uaml, in the Marianas or Lad rones. A'T. 3. Spain cedes to tihe Ulited( States thle archipelago known as the Philippine Islands and conprehendling tihe islalns lying within the following line: The cession provided for,by these articles is referred to five tiles; in subsequent articles of the treaty, as follows: ART. }. * * * the territory over which Spain 1) tlhe presorlt treaty relinquishes or cedes ler sovereignty. * * AR'. 10. The inhabitants over which Spain relinquishes or cedles her sovereignty shall be, etc. Awr. 11. Thle Spaniards residinl in the territories over whichl Spain lby tils treaty cedes or relinquishes her sovereignty slall be, etc. ART. 12. Judicial proceedings pending * * * in the territories over which Spain relinquishes or cedes her sovereignty shall be, etc. Airr. 14. Spain will have the power to establish consular officers in tlhe ports anl places of the territories the sovereignty over which has been either relinquished or ceded b)y the present treaty. It therefore seems that thle word "cede," as used in this treaty, is to be given the meaning ascribed to it by ordinary usage, to wit, "To yield or surrender; to give up; to resign." (Webster's Dictionary.) Consideration must also be given to the fact that nowhere in this treaty is mention or reference made of the territorial boundaries of the United States, either present or prospective; and to make ' assulrance doubly sure," the treaty provides: ART. 9. * * * The civil rights and1 political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress. It results from the foregoing that when this treaty was ratified by the Senate and approved by the Executive, these two agencies of our 47 Goverlnmelit assented to the war ceasing and peace being estal)lished upon the condition (among others) that Spain assents to tle rights secured 1, the United States by virtue of mlilitary occ(lupation '.lld abaindolns its right to regaill the territrv so( octcupie(l. III so doing neitherl tle Senate nor the Executive attteil)ted(l to extend the territorial,(oundaries of the UI iited States. nor1( to assenl t to such e xtensiol, for thle 1proplositioIl wa' ill o110 ise, itivolved. So that if the( Senate or the Exel'lctive, acting aIlone or ill conjuinctionl, alld \vitllout tle colnctrrence of thle IHouse of Rep)resentativ-es. (cold( extenl( or' colntract the territorial boundaries of the UnSited( Sttates.t tis suttfcienlt to sat tlhat in this instance they have ilot cattemplted to exercise such power. The Senatte placed itself on record by passing tlie followiing resolutioll: ]bIesolcred 1hi tlhe,sn'atle (tnd Hloute of Jie,]re.seettlires of thel,itled,Sftet.s of I teriera sii ('oyr.'ss.s.sctsedMbled, That )y tile ratification of the treaty of leace witli Spain it i-: not intcnde (l to in(corl)orate tlie illlalbitalts of tlhe Plh'liIipinel Islalnds into, citizenslilp (of tile Unite( States, nor is it intended to permianently alnnex said islanllsl as an integral lart of tle territory of the Unlited States; blit it is tile intentionl of the l'lited States to establish (n said islands a governmenlt sulitaible to) tli wants aind c(,n(litiols of tlie inhabitants of saidl islands to prepare tilell for local self-governnmllet, and in due timle to mlake such disposition of said islalndls as will best proilote the interests of the citizens (of the United States anll thle inhabitants of saidl islands. As to the effect of action by the political }branch of our Governmlent regardilng territory, the Supremie Court of the UCiited States say (Marshall, Chief Justice): If those (departmenits wlicll are intrusted with tile foreign intercourse of the nation, which assert and lmaintain its interests agailst foreign pwers, have unequivocally asserted its rights of dominion over a country of wlhicll it is inl possession and wilichl it claills under a treaty; if the legisl(tttre has ((cted(lt on. th1 co.str( chtion, thJ s ((8 sertedl, it is not il its own courts that this construction is to le denied. A question, like tilis respecting the boundaries of a nation is, as has been truly sail, more a political tlian a legal question, and in its discussion tile courts of every coulntry 1must respect 1the pronoottce(d till of the leyislature. (Foster et al.,. Neilson, 2 Peters, 253, 309.) Inl a later case the court again assert this doctrine, and with reference to the announcement thereof in Foster,. Neilson say: This court did not deem the settlellent of boundaries a judicial but a political question-that it was not its duty to lead, but to follow tlle other departments of tlle Government; that when individual rightsdepended on nlatiolal boundaries * ' * its duty commonly is to decide upon individual rights according to those principles which the political ldepayrtments of thie nattion 7ee estrblishe(l.. * * * We thiink, then, however individual judges might construe the treaty of San. Ildefonso, it is the province of the court to conform its decisions to the wlill of the legi.slarture, if th(tt will ha(s been clearly e.xpressed. (United States r. Arredondo et al., 6 Peters, 691, 711; Garcia v. Lee, 12 Pet., 511, 520.) The effect of the treaty and the action thereon by the Senate and the Executive was to end the war. But the condition of the territory subject to military occupation as a result of that var was not changed by said treaty, except that it ceased to be a theater of actual w-lr and the title of the United States was made incontestable. 48 Up to the preselit tilme the only powers of the IUnited Stattes which have )eenl exercised in relatiol to these isla(ls lare tlhe w\t11 polers. The c(onfirinationi of the treaty of petae was tu)lt the ('conumlllllation of a war. IBut the lilitary arln of (our Go(vernmnllltlnt is without autthority to extend the b}oundaries of time tlUited States. Inl re(tgird thereto tlle Suprem',e Court of the ['nited States say: A war, tlherefore, (leclarel,y Collgress can never re )presumedl t( lbe waged1 for tlhe purpose (f conquest o~r tlie acqluisitimii of territory nolor does tlle law dleclarillg tle war iply i an authority to the Presi(lent to enlarge tlie limits of tlhe Unlitedl States 1) suhjugating the enemy's country. Tlhe UnIited States, it is true, may extend its l)oulldaries by conquest (or treaty, and miay (lenandl tlhe cession of territory as tile condlition of peace, in order to ill(lemnllify its citizens for tlhe iljuries they have suffere(l or to reill})urse tlhe (overnment for thle expenses of the war. But this can be (lone only by tlhe treaty-lmaking )po\wer or tie legislative autlhority, anll is not a part,)f tle power conferre(l upon tlhe Presilent by thle declaration of war. I is (duty aii( his power are p)urely military. As conimanler in chief lie is authorized to direct tlme movements of tlie naval and military forces placed by law at his conmmanid, and to empllo)y them in the manner lie may deeml miost effectual to harass and conquer and subdue the enemy. He may inva(de the hostile country and sublject it to the sovereignty and authority of tlie' 'nite(l States. Jhtt hi<s cone.est lo 1)ot erltry'e th,' bhomdaries of this Union, o,,r e.x'tenl the oplertio. of o(tr istitif(s 1 and t lto's beJJomd the lihiit.s before as.siyJPed tP, tlhe(i ty tlhe lbi4s1ti'e pr'er. (Fleming et al. r. Page, 9 11 ow., 614, 615.) Thle militarv arm of our Government deals with our eneimies' territory as 'property." Sulch territory is lawflt prize of war and is seized and held, as the Supreme Court say, ' in order to indemnify its citizens for tlie injuries they have suffered or to reimburse the Government for the expenses of the war." This is what has been done in the territory acquired ly the United States in thie late war with Spain. The President, having' waged a war declared to exist by time Congress and having conquered (a peace, presents to Congress the territory of said islands 'as so llmuch property, seized as a spoil of war and to ble dealt with by the sovereign people of tle United States as shall b)e determined by tliat sovereign's will. Int lUnited States?'. Reynes the court say (9 How.. 153, 154): The le'yistatire and e.ecOtipre dle)artmnents of t}le (Giovernmelmt have dletermnined that tle entire territory was so cede(l. This court have solemnly andl repeatedly declared that. this was a matter peculiarly belonging to the cognizance of those departments. (United States r. Revyes, 9 How., 127, 153-154.) In Fleming et al. '. Page the court further say (9 I-ow., 6(16): 3But the boun(laries of time iUnited States as they existe(l when war was declared against Mexico were not extended by the conqluest; nor could they be regulated by the varying incidents of war andt be enlarged or diminished as the armies on either side advanced or retreated. They remained unchanged. And every )lace which was out of the limnits of the United States, as preciously established by tll' political (tmtthorities of the Gorernment, w'as still foreign. Attention is directed to the fact that the legislative department of the United States Government has not taken action of any kind whatever in regard to the territory of the islands ceded by Spain. The 49 ~Senate hias advised the, 1resident to ratifyv thc. t*reatyv of peace an(1 terminmite the war upon the ternis s.et forth in the treaty. Being so ad vised, the Presidenit ratified the tr-eaty. (80 11. S. Stats.. 1t75')4.) Since the ratification the 1President and all. the subordinate depart ment's of the executive branich of our Government have treated said territory as beiiig outside of the territorial boundaries of the United Although these islands were outside the boundaries- of the United States-, they were territory appertaining to the, United States, to whichi the sovereign people of the Unit~ed States had acquired sovereign title, and in which said sovereigni had secured manym p)roprietary rights to p)roperty. It was therefore the duty of the 1Presi4dent to use the meanls ait hris disposal to maintain the one and1 Ipreserve the other. This duty is equally imperative should the e_'mergency arise upon the high seats, or in territory recogiiized to be withi'n the jurisdiction of another s1.over eignJIIty. Therefore the discharge of such duty cani not be interpreted as an atssent to the extension of the territorial })oundcaries. Appar11ently the position of the 1Presidenit is that the iniitial step in niakhino known the, will. of the sovereigni in regrard to the extension of om- boundtaries to include this, territory is to lhe taken by the, leg)islative (leltartmient, anil the assent, of ithe executive departmient to be evidenced by the approval of the atcts, of the legislat~ive department by the President. This course is in harmony with the theory anid (1sttbli~shed practices of our GovrOnmI11ent. Ini the special message to Congress, transmnitthing the Ljouisiana purch:i~se treaty 1Pre~sident ~Jefferson saiti: With the wvisdom of Congress it wvill rest to take loise ulterior niea-sures wNhich nlav e niecessarv for the immedliate oc-cupationi andI teinporary government if the C(ollit~ ty101o its~ o('ioporohtooi (i)it 01' Unio~io; for reiiileri l~g the change if govermnment a 1 iessinig to (oir newly adoiltedl brethren; for 5(c0in~ill to them the rights, of (onscience iiiid l)i'olerth, andl establishing friendliv relation's with them. (Ilessages of the Presidlents, Riclhardso n's, (Cop., Viii. I, 1) In that me'ssage, 4Jeffersonl als,-o Said1: Thle 1)roperty andI Sov-erei~rntN- of all Louisiana ***have oii certain (iii(litions been transferred ti the lniteil States by instrumients bearing (late tht 80th i)f Ap)ril last. When these shall have received tihe Conlstitutionlal sanction ift lhe Senate they will witinolt (lelay lie coninunicateil to thle,.Iphs)d''.ito~irs. ((lSO for tile exercise of their functions as to those condlitionls which are wvithin tile p)owers ve:-tci1 1x tivte Constitution in Congress. (Ilhidi. -After the Louisiana purchase treaty had been ratified by the Senate andi ratifications exchanged, Jefferson agrain sent the treaty to Congress. accompanied by a mess.-,,age wherein he said: These conventions ***are commuanicated to you for consideration-ini,our Itf/is1(itfire copyacitil. You will oilsery tlt1niloran~t (conditions can not be carried1 into execution inut with thle aid (if tile Legyislature:,. (Richardson's Comp., Vol I~ P 8,62.) 1394-03 ~4 50 See, also debate in House of Representatives, lieginning October 24, 1803, onl the motion for carrying iiito etlect the Louisiana purchase treaty. (Annals of Congress, 1803-4, p. 471.) rI~ese islands have been affected by the Wr(w rather than the tr-~(ty. W1ar wrought the changes, thel treaty only confirins them. The result of the, war with Spain upon these islands was to destroy the, jurisdiction of Spain therein andl compel a withdrawal of Spanish sovereignty the-refrom, leaving the, islands in the piossession of the U"nited States. TIhere-(upon they became land appertaining to the United States and in the possinof the United States, but. not within the territorial bouindtaries of the United States. There miay be some question as to whether or not all the country within the, territorial boundaries of the United States is bound.and( privileged by the, prov-isions of the Cons;itittion.. but there, cani le, no, (luestion that teirritory without the, boundaries of the U'nited State(s is not bound and privileged by outrCosiuon Trhe United States Supreme Court say: The Constitution (an have no operation in another country. (In re Ross,.140 17. S., 453, 404, citing; Cook r. Uniite(I States, 138 U. S., 1571, 181.) This brinos uts to the question: IHas the Congress Cantihoicity to legislate for territory appertainlinge to andl ini the possession of the United States.~ btit outside of the territorial boundaries. This exact question was pireseiitedl to the Suipreme Court of the United States in tlu'ee, cases decided in '1890-Jones v. United States, Smith i'. United States, and. Key cv. United States (137 U. S., 20-2). The, territory involved was the _Navassa Island, in the Carlibbe~an Se~a. The island is a small one, and wittily (designateci bya recent magazineM11 writer on this subject as "an abtandoned manuire heap." But tim c-ases pr-esented to the Suipreme Couirt imvolve(1 the infliction of the death penalty on Amnerican (citizens, than which no question the courts are called upon to (lecide is more, solemin. 11w court heldl: The gnano islands, act of Angnst ~18, '18s56, c-. 164. reenacte( hin Revised1 Statutes, secton 57-58,is constitutional,and valid. Th provisions of that law directly involved were as follows: SEC. 5-570. Whienever anyv citizen of thie Unitedl States discovers a (leposit of auanio oil anyv islandl r( ck, or key, niot within thie lawful jurisdliction of anyIItV i goveryilunent, and not oc-cupied by the citizenis of any othier government, andT takes peaccableI possession thiereof, andl occupies the s~ame, such islandl, rock, or key may, at. the (.uscretion of the President, /~ osdrdo petiiqI h IedSoe Sj.c. 5576). All] aicts, donie and offenses or crimres,, committed on any suich island, rock, or key, by persons whio may lan(I thereon, or in the waters adjacent thiereto, shall be leeine(1 comnmittedl on the high seas, on; board a merchant ship or vessel 51 belonging to tile Ulitedl States, antl sllall 1)e punisiled accordinlg o the lahws (,f the l'nited States relating to such ships or vessels and offenses on the high seas, which laws, for the purpose aforesaidl, are extended over such islalnds, rocks, or keys.: The ildictmlellt charged that Henry Jones. at NavasLsa Island, a place whichl then and there was under tile sole andl exclusive jurisdiction of tle United States, and out of tile jurisdiction of any particular State or district of tile tTllited States, the sanie bteing, at tile tiie of the coniiiitting of tile offenses, * * * an island situated in tlhe Caribbean Sea and named( Navassa Isl1a(1n, * " * and which was then and there recognized and considered 1by the Unite(l States as appertaining to the Unite(l States, and whicli was tlhen andl there in thle possessiol of tlle United States, * * * llmurdered one Tholmas N. Foster. The dlefendant tiled a g-enleral demurrer, w\hichl was overruled. aln he then pleaded not guilty. Trial was had, and the jury returned al verdict of oguilty. Thereupon the defendant moved in arrest of ju(lgllentBecause thle act of August 18, 1856, c. 164, now codified with aimendlnents as title 72 of tile Revised Statutes (of the Ullited States, is unconstitutional and( voi(l, 1and tlle court was without jurisdiction to try the (lefenlanlt unler tlie indictnent fund against lhim. The motion was overruled alld the defendant sentencedt to death. In aftirining this sentence the court say (137 U. S., 21.2): Bv1 tle law otf Inations, recognized by all civilizedl states, dominion of new territory umay be acqluired by dliscovery and occupation, as well as I!y cession or conquest; and wh'en citizens or subjects of ole nation, in its name and by its autlhority or witll its assent, take and l1(l(l actual, continuo)us, adll useful possessioll (althoug}h (oly for tlhe purpose of carrying on a particular business, such as cattching and curing fisih (r workiilg minies) of territory uioccupiedl ly y a otllher government or its citizens, tilie niationi to \whicli tlhe b)elolng lmay exercise (such jurisdliction and for such 'leriod as it sees lit over territory so acquired. Tils principle affords ampl)e warrant for tlhe legislation of (ongress concerning gluaino islands. (Vattel, lib. 1. c. 18; W\'heaton on International Law, Sth ed., ~~ 161,, 165,176, note 104; lIalleck on Inlternational law, c. 6, ~~ 7,15; 1 I'Phillimnore on International Law, 3d el., ~~ 227, 229, 230, 2'2, 242; 1 Cal\o, L)roit International, 4th ed., ~~ 266(, 277, 300; Whiton r. Albany Ins. (o., 10'9) Mass., 24, 31. ) When Spl)in elected to go to war rather than withdraw from (t'lua, she sutbjected the sovereignty anidl dominion of her entire realm to tlle haza1nrd of that war, and by, the laws of war and of nations she m1ade( it la\wful for her adversary to invate any part of her domalin landl (isplace wher sovereign'ty, excltd(l her jurisdiction, and destroy ler dominion: in otlier wor(ls, effect a c(omplete conlquest. So nmuch of her domain as bec('111me so sittuatedl was without the jurisdiction of Spin iand within tlhe possession of the United States. As to the United States, such territory was the samle as land newly discovered and occupied by- citizens of the United States, with this difference, tle occupier vwas la mlilitary force. of the United States sent there by the nation itself, instead of a pr1ivate citizen and pioneer adventurer. 52 The sovereignty and jurisdiction of the United States have attached to the territory embraced in a number of islands, under the act of August 1S, 185(, a s will appear from the following correspondence on file in the Treasury Deparltmlent: TREASURY D)EIPARTMENT, FIRST COM)PTROLILER'S OFFICE, TWasitingtou, D. C., Se'ptember 16, 1893. HOn1. S. \VIKE, As.sistat Secretary Qf the Treasury. SIl: In compliance with the request contained in your letter of the 15th instant, I hlave the honor to transmit herewith a list of the guano islands bonded under tie act of August 18, 1856, as appears from the bonds on file in this office up to the present (late. You will observe that the list is the same as that translnitted with letter fromn tlis office, dated December 22, 1885, no additional bonds having lbeen received since that date. Respectfully,!ours, KR. S. BO)WLER, Comptroller. List of gloato islands, apterta(ining to the Uoited States, bolnded mder the act of August 1, 1856S, (as (appears from. botns,on file in th(' oftle of th e First Comptroller of tMle Trcasury, 'Steol ber 1;, 18J3. Number of Date of bond. b1)old. 1 Oct. 28, 1S56 2.....do....... 3 Aug. 31,18S58 4 1ee. 3,185S 5 Sept. 6,1s59 6 Dec. 27,1.59 7 Dee. 29,1859.. do....... Feb. Y,1860:S Name of island. I Latitude.; Logitllie. Bakers, or New Nantucket..................... Jarvis.......................................... Navassa........................................ Howlarnd, or Nowlands.........................ohnsons Islands.............................. Barren, or Starve............................... Enderburv............................. McKean...................................... 'Phenix..................................... Christmas.............................. Maiildens Islnds............................ America Islands............................... Anns.......................................... Barbers........................................ Baunmanls.................................. Birnies...................................... Caroline...................................... Clarence....................................... D)angerous Isllands............................ Dangers Rock.................................. D avids........................................ Duke of York ---~ --- —------------- — ` --- —--- D)uke (f York................................ EInderlbrys.................................... Farverse............................. Flint............................... Flints......................................... Frances........................................ Frienhaven................................... (Gardners..................................... Gallego.................................. Ganges................. Groninque................................... H um phlreys................................. Kemns................................... Liderons................................. Low Islands..........................-......., M ackin........................................ M ary Letitias................................. ar s........................................ MaItiews..................................... Nassaul......................................... Palmnros....................................... PenhuynIls................................ Pescado.................................... Phcpnix........................................ l'rospect....................................... Quiros...................................... Riersons..................................... Rogeweins Islands............................. 0 15 00 N 0 21 00 S 1 10 (00 N 0 52 00 N 5 40 00 S 3 08 00 S 3 35 00 S 147 00 S 1 58 00 N 4 00 00 S 3 140 ( N 9 I9 00 S 8 51 00 N 11 48 00 S 3 35 00 S I 9 54 00 S 9 07 (00 I ( 0( 00 S (; 3000 (10 N (0 1 0 N 3OS00 SN 3 S:0,0 () (; (I' ()t S 2 500 (0t S 10) 32) 00$ 11 261 0 () 1 50 00 S.1 40 0( S 1 42 00 N I1( 59 ooS 10 (0 00 S 10 10 00 S 4 411 o) S 11 05 o ( S 9 33 (0 3 02 80 N 4 40 00 s 2 53 00 S i 2 03 00 N 11 30 00 S 5 48 00 N s 55 00 S 3 40 00 S 41 42 00 N I 10 32 (0 S I 10 10 00 S 11 (o ( S 17; 30 00 WV 1570 52 00 W 175 0) 00 V 1 76 52 00 W\............... 155 55 00 \ 171 0S (00 W 174 17 00 W 170 55 00 W 157 10 00 W 1 65 00 00) W 159 28 00 W 171 15 00 W 178 0 00 WV 15-1 0 00 W\ 171 39 00 W 150) 07 O0 W\ 171 40( 00 W 165 56 00 \V 162 23 00 W' 170 10)00 no 172 10 00 xV 171 14 (0 WV 170 ) 50 00 W 176; 40 00 WN 162 20500 W 151 48 00 W 161 40 00 W 156 59 00 W\ 174 52 00 W 104 05 00 W' 160 55 00 W' 15(i 4400 \W 160 52 00 xW 173 44 00 xW 161 50 00 W 1701 38 00 W' 172 416 00 W 173 20 00t) W 172 0000 W 173 26 00 W 1;65 30) 0,V 1 t62 20 00 W 158 07 00 w 159 20 00 W 170 52 0 WV 161 3800 W 170 12 00 W 1i60 53; (O0 W 156 07 00 W 53 Ii.,t of y/atm i8. I<(IS., I) i)i'ft I i n to lie % I' )tic1 bt IIcs, 1I)ol<'d I<'r fl it' < 'f!f II(- ottst 1".;;, (S'', 'f.-(onltinuedl. N u11- i her (f' IDate (f bon])(d. 1)01d(1. 'Na lne' 4) iSInllI(. Lattitulle. 1 r.I itII,(, 9 b. <s, lSt;iO, amlrt g Islians............................. 5 1 00 N 12 0 0) I S'rh Ann. \................. ---..............- 4 00 00 N 154 22 )0 Iidnles Islalnds................................ I 4 20 00 S 171 (00 00 \\ Sta'rbilk or HIero).............................. 5 2- 00 S.). t )0;Stavers......................................... 10 0. 00 S 15 1 i t)W \W alkers........................................:;. /) N 1 } ) 10 \N X Washington (or 1'alligta........................ 1 ) )) 00 N lt) 07, \V 10 Dee. 30,1862 ( r tre a t an l Little Swan Islands in tl ('a ri-................................., bean '-a. IC) I.~,l. 'I~, It;8 11 gn. 1'2, 1St; Islalnds in ( aribbean Sea not named on 1,nd................................. 1/2 Nov. 2, 1893 Pedro Keys. Quito Sereno, Petrel, 1Roncaor................................... 13 Sept. 8, 1879 Serrnilla Keys, viz: East Key, Middle Key, Be lon Key............................... 15 20 0 N 0 \V Aorant Keys, viz: Northeast Key, Sald Keys, | Savanna Key, Seal Key...................... 7 17 2 00 N 77 5 10 W Arenas Key.................................... 22 07 10 N 9 1 2.t:0) 11 Sept. 13, Sso l) e Aves........................................ 3O 40 00 N X3 i 7 00t Serranilla Keys............................ 15 20 00 N 79 40 (0 W Western Triangles.......-....:........ 20 54 00 N 92 1: 10 W 5. Oct. Is, 1SSO Island of Arenas........................... 22 24 30 N! 91 21 V \X ],, CIlRCUILAIR. —(AUAN/O ISLANDS No(Ir A I''E'r.iINNi; T(o ' NI'TEi ) STATES. [1.94.-I)epartlment No. 176.-lBurela of Na;vigation.] TREASIlY T)E'. ARTMEN'r, (OFFIE' OF THE SE('ICRETARY, (1.h1/i.lt}o)), I). ( 1,, \o\cebcr 21, IS'!)/. To C(ollecltors of Customs (mt.l (ot,/er''. At the request of the Secretary of State, tle following-namllel "guano islands,'' specified in lists issue(l b)y this I)epartment of guano islands alppertaining t t the United States, will be considered as stricken from said list anll no longer illcludledl among tile guano islands blonde/d by the United States under the act of Autgust IS, 1856, viz, Arenas, Perez, Pajoras, Chica, Arenas Key, Western triangles. S. WIKE, A.I sis.fiUttd,%crC'Hi(/r/. 'Tle sovereignty of the United States is not confined within territorial boundaries. Broadly speaking, it is coextensive with the world. By virtue of its sovereignty the United States a'cquires the right to recognition as a mIeml)er of the famlily of nations. with all the rights and privileges appertaining to such relationsiip. It Imay wacge war in foreign territory, traverse the high seas, and protect its citizens and flag wherever found. It may also acquire rights outside of the bounlllaries of the territory belonging to it, both peaceably and forcily, as, for instance, the right to move its troops through foreign territory, construct ship canals, control harbors, establlish coaling stations, consulates, and other agencies of commerce. Take the instance of the acquisition of land in a foreign capital by the United States upon which to erect an embassy. Such land would belong to the United States, its sovereignty would attach thereto and its flag float thereover by sovereign right; but it would not follow that said land was territory bound and benefited by the provisions of our Constitution, and that a person setting foot on said premises would secure the right of 54 unrestricted( locomotion througlout the Uniited States, or that goods b)rlouglit u1pon the premises were slsubject to the c(ustolms tariffs of the United States. The so,,,re(/qt/ of the United States "'follows tile tflao' wherever the flag is raised lby the authority of tlat sovelrignlty, Nwhether the raisings is (accomllllished b)y a discoverer,:an amllbassado'r, or ' mllilitary coiiiialiid(er. buit the territorial lboutndiaries of tle 1United States do lnot until applropriate actionl las )een takeln b y Conlgress. T'lle tusage( of the world is that territory, title to which is acqutilred )by conuluest, andl tile aCluisitionl conlirl11(d by t re-ty of peace, is to 1be dealt withi lv the nlew sovereign accor(ling to the terms of tile treaty, or, in the ablsenlce of treaty stipulations, upon such terlms as the newN sovereign shall impose. 'The new sovereigin in the instance with which we have to deal is the sovereignl people of the United States. Thatt sovereign has conferred upon C(ongress the authority to impose the ternls and plrescribe the means of acco)llplishig the purposes of goverlnllent in all places to wlhich.1 its sovereignty attaches, or stulject to its jurisdiction, t and as to all property to which it has rights. (Art. 4, sec. 3, Const.) In the exercise of this authority, Congress, with the approval of the 1xecutive, may extend the bounldaries of the United States to include this island territory. If Concgress should extend the }boundaries of the tUnited States to include these islands it may thereafter continue themi in the condition of )property by allowing themn to remlain unorganized territory, as was done with ()regon and other parts of the West for many years. Or Congilress ma1y create in said territory a political entity which we call a '"Statet," aildl at(llit it iltto the Uniol of States, witi the powers possessdcl by- the other coimponent States, as was done with California. Or Congress 11ma5y erect in said territory the political entity known as a "Territory," and possessed of such powers ats Congress sees fit to confer uponl it, as has been done in mnanv instances throughou1 t our history. The illpolrtant matter to e now determlilned is, s l,(al tkc h)'?oundarlie of tiJ [itcei State(S 1t>e evt ended to inctlude any o/ (al of tfe islands oft I'wlto Rico, J'l;1lr;ppinle iArC1i)plelaqo/, ant( Geuam. The determination mlust be made by Congress and approved by tile Executive. This extension of boundaries may }be accomplished directly by express legislation in regard thereto, as in the instances of Hawaii and Florida, or indirectly by legislation of such kind and character that the 1purpose to make such extension is established by necessary intendment. as in the instances of Louisiana, California, and Texas. One of the first acts of the first session of the Congress of the United StLtes imposed the penalty of death for robl)ery and kindred offenses 55 (onmmitted oii the ' high seas, or am- iver hveni bashin 01. lav. out 01 the( j Urisdictioii of any p)articullar State." (Sec. S. chap. 9.act, appi1O-ed AXpril:30, 11790: t Stats., 11:3.) The Utnited States Supreme Court held. this act to be constitutionial af~laplid o orign vs wheii thle ofleiise wvas commliitted -oH lboard aveIssel of the Ulnited States. or to aiiv personl coniiiiitting. the otfleise. on1 al Vessel wh~iich ha(l nio nattioial (haracter'. (Unlited 'Statesi.ur lomug,.5S Wheat.. 184:, Uiitedl States '.- llolnmes., 5 Wheat.. 4-12: Uiiited States- i*. Klintock. 5 W~helat.. 4K Ini 1820 the Congress, of the tiiited States p)ass((d an act whIch providedthtEve-ry pu1-son who, being Ot the crew~ ( P sjijips (Olnpan (f anyv foreigni ve.sel engag-ed in the slave tralle, * lands from suchi vessel and, on any foreirn1 sill Ie, seizes any neg(ro o-r munlatto with intent, to inak snch negrro or mlnltt. a slave, *7~ is a Ipirate, andl shall snffer (Ilentil. ( see see. 5376, Rev. Stats. I '. S.) This act wvas directe(] -against the practice of seiziuig- theIjuiliabitamits of Africa and. converting- thenil iiito slaves. It was anI assertion of woilkld-widle sovereignty, awl illIustrates the doetrhi i that the sovereitnitv of a niatioii termin-ates only where the prior righso aite reeOgnlize(l sove reignutyv ) beii. a uid may tattaich itself to any land or territory niot w ithiii thle jurisdictiomi of a reeog-iiized sovereionltv. It is ouilv niecessary to call attemitioim to the leg)islationl of Cjongress -,reg dinig the inany personis anid miatters slill)ject to the maritime an-id ta(lImiraltv jurisdictioni of thle Un litedI States to establdish that CongreMss has extraterritorial powers of lecrislatioui. A"XtY/te,V/toI,///b mieais lbevon-d or outside of the, territorialI liliuits- of a state (;.Bimn.,:5).anid Iv (xtraterritorial t power-s of lepoislatioui is ineamit the aulthoritv to Create legislationl which will oper'ate 01)11) persons. rights. or aw beyonid the limits of thle state, but which are still amenlable to its laws. These p)owers are m1ot conhnil-ed to the seas. hBy treaties orI. other ilitermiatimnal -agreemenfts, upon princliples, of theV conii tv o)f mnat ions and1 the tusages of the wvorld, the sovereigui people of the( Uniited States acequire Imany, rights to tradle ini thle territory anid wit th n abitalts of other niations. Whemi acquired, these rights belong) to the sovercign-tv of the. Un-ited States, and aire sovereign rights, the exercise of Which may be an-d Care regulated by Congressional legislationl. The sam~ile is trite of our relations wvith fo-reigni 9)(Wermiiineits as imaiiiaile and con-ducted by our represenitatives an-d instrumenitalities ini foreigni land (s. They remain, wNithinl thle. jurisdiction an-d subject to the sovereign-itv of the United States, although91 without its territorial boundaF les. The exact rule is that wiu'reei, t/t,(' zo'Ol~,d6~q of the' falted td(*mybe ass~elted, tie' c'iqoayrc of tiw( Uni~ted ASi(t(te* mwy )elC;be tie' U1y8 and wfean,,8, tiw mannmel aldw metiwds~ by w-hieli suchai s~oveeiqwty 'is to be asserted. 1 5- (i The determiination of the (questionl as to whA-ere tile sovereignty and jurisdlictiOn of the United States shall he assertedi Is to lbe made by- the Congress and the Executiv-e. It is a political question, and (-alls for the eXerIIIlse of powers possessed bV the political branch of the (io-TN, ermient. In Lu7ited States 'r. The James G~. Swain the court -say: As, our (Govcrnmnent is constituted, the P~residlent andl Congress are vestedl withi a]II the responisibilitv and powers of the ( iovernment for the dletermnliatio.n o)f question's as to the, maintenance and extension of our national dlominion. it is not the province of the courts to part~icilpate in the discuission or dlecision of these questions, for they are of a political. nature, andl not judiicial. The Congress and the President having assumed j urisdliction andl so vereig'ntv, an(I hiavingY ma(le (leclarations and assertions as to the. extent of our national auithoritv amid dominion above indlicated*** all the p~eople and~ courts are bound by suich. governmental acts, (Ieccarations, and assertions ***and the responsibility of inaintaining the national auithority wvithin the houmidaries,4 so fixedl, and1 to the extent asserted by the executive and legislativye authority against foreign governments, rests with the execuitive andl leg-, islative b~raniches of the (iovernmuent. (United States r. The James G'. Swan,.50 Fed. Rep., 108, 1 11. W~ith reference to the same. question, tim Uited States Supremle Court s.ay (1:37 U'. 5., _212): Who is~ the sovereign, d(Ij vorc or de/oacto, of a territory is not a judlicial lbut a political question, the dletermination of which, by the le'islative and execuitive dlelartments of any government1, conclusively hindIs th ude as well as all other fi- ew citizens, andI subjects of that government. This pirimnciple has always been upheld by this court, and has been affirmed indler a great variety of circuinstances._ (e e authorities (iteil.) Continuing' the discussion, the c-ourt sax- (p). 214): All courts of justice are bound to take judicial noti(ce of thme territorial extent of the jurisdiction exercised b~y the, government whos-e laws they' ad minister, or of its recognition or (lenial of the soverignty of the foreign power, as appearing fromt the public acts of the legislature and the execuitive. (See authorities cited1. Jones v. infite(1 States, 1:37 UT. S., 202, 212, 214.) The legislation enacted by Congress regarding consular courts (Title 4 7, P. I783, UT. S. Rev. Stats.), (conferring jurisdiction thereon and regul ating procedure therein, is also an example of the exercise of its, power of extrate rritorial legislation by Congress. This legislation was sustained by the United States Supreme Court in a case wherein a mhan had been convicted and sentenced to death by the American consular tribunal in Japan.- (In re Ross, 140 U). 5., 453.) The case was as f ol lows: John M. Ross, a seaman of the American ship Budll/o(n, was charged with murder, committed on board said ship while in the harbor of Yokohama, Japan. He was placed on trial before the consulgeneral 'of the United States at Kanagawa, Japan, sitting as a court in that place, in pursuance and by authority of the statutes of the United States for that purpose made and provided, He was not indicted by a grand jury, but a complaint in writing was filed in said tribunal. The accused demanded a trial by juy which wvas (lenied, and the court 57 proceeded to heair and determilie the case without a jury, entered judgmlent of conviction..and sentenced tile accused to be haniged. irhe President of the Utnited States collnlmuted this senltence to life illprisonmnent ill the penitentiary aIt Allbany.. 'Y. After )being incarcerlated ill said lprisol for 1nearly tell years. Ro ls., appliedl to the circuit coIurt of the, IUnitedl States for the lloritherni district of New Yorlk for a writ of /tt7,,(ti coiols, for lis discharg'e, alle'-1 ing that his convictioln. senltence, tand illl)risolnllent were Inlawft ll, and stating the causes thereof and attendant circmnstances. The writ was issue(l directed to the stlperlitendent of the penit{entiary, who mnde return that he held the petitioner under the warrant of the I1resident, a copy of which was annexed. The circuit court, after full consideration of the subject, entered an order denying the Illotion for discharge and remlanding the prisoner to the penitentiary. Fronl that order -ian appl)eal was taken to the United States Sprllllme Court. Therein it was contended that the United States consular c'ourt by which he was tried was without jurisdiction of his persoin, blecause he wtas not a citizen of tlhe United States and was a subject of Great Britaitn; that said consular court.was withoutt jurisdiction of the offense chargred because it was committed tabo1ard a vessel of the lUnited States on the high seas, and Iny the laws of the United States sucIh offeltses so c(onmnitted -were to be tried in the United States before its dlomestic triburials; that if it were held that the offense was committed in,Japan and not upon the high seas, then, the prisoner insisted, that --- — The statutes creating the consular courts, as well as the treaties under whilch thev are instituted and front which they dlerive such authority and jurisdiction as they possess, expressly subject that jurisdiction to the laws of the United States. The claim that the Constitution has no extraterritorial force is (lisproved by- the existence and operation of the consular court itself. The refusal to allow the accused a trial by jury was a fatal defect in the jturisdiction exercise (lby the court, and renders its judginelt absolutely void. (See 140 1'. S., 460.) The holding of the court, as stated in the sylltabus, is as follows: By the Constitution of the United States a government is ordained and establisled "for the United States of America," and not for countries outside of their limits; and that Constitution can have no operation in another country. The laws passed by Congress to carry into effect the provisions of the treaties granting extraterritorial rights in Japan, China, etc. (Rev. Stats., ~~ 4083-4096), (lo no violation to the provisions of the Constitution of the United States, although they do not require an intlictrent by a grand jury to be found before the accused can l)e called upon to answer for the crime of murder committed in those countries or to secure to him a jury on his trial. Regarding the authority of Congress to legislate for territory without the boundaries of the United States, the court in the body of the opinion say: We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out, 58 contenlding, that, so far as crimes of a felonious character are concernedl the samey protection and guaraiitce against anl undlue accusation 01. anl unfair trial securedl by the Constfitution to citizenis of the Unitedl States at. home shoubld lbe enjov ed hv themn abroad. III lone of the laws w\Nhich have beeii iasselI hy Conlgress to give effect to treaties o)f the kind has there ileen any attempt to require inidictmenit by a graini juryx blefore onle can be calledl upo)n to answer for a ipubldic offens~e o)f that grradle coininittedl in those countries, orI to secure a jury onI the trial of the offense. Yet the laws onI that. sub~ject have been lpassed without ob)jection tol their constitutioinality. Iil(leed, objection on that gyround was iiever raisedl in any quarter, so( far as' we are informedl, until a recent. jeri sI. It is now, however, eariiestly l' ressed 1y counsel for the p~etitioiner, but we (10 not. thinik it tenable. By the, Constitution a goveriiineit is ordained anl(l estalblislhed 'forl the United States of America.'' anli not for countries ouitside of their limnits. The guaranties it affords against accusation of capital or infamous crimnes, except..y indlictilent or p~resentiment by a grand jury, and for anl impartial trial lbv jury when tinus accused,1 applly onfly to citizens and others within the U nited States, or, who are, broughlt there for trial for alleged offenses comimttedl elsewhere, and not to residlents or temporary sojourners abroad. Tile Conlstitution can have no operation in another country. WIhen, therefore, the represeintatives or officers of our G'overninent, are perimitted to exercise authority of any kind iii another country it mist. be onI suich conllitions as tile twvo countries miay agircc, the laws of neither one, 1wIing (II ligato.ry upon thle other. The (leck of a private Ailericani vessel, it is true, is coilsidlered for many puiposes coilrtrictively as territory of the United States, yet personsOil n b~oard~ of such vessels, whether officers, sailors-, Or p~asseingers, c-an not iinvo)ke tile plrotection of the pi'ovisions referred to unlt'l hrmight, withiil the actual. territorial. boundlaries of tile t~nite(l States. And besidles, thleir eiiforceileiit ab ro adl ill nuilirous~ places, where it wvoill lbe highly iiiplortaiit to hlave consuils ilive-stell with judicial authority, would lbe impilracticable, fromt tile iimp~ossibility of obtaining a, coinpeteilt. grand or petit. jury. The requirelieilt. of suich a body to accus.e null to try nil offender would~l ini a iiajoritv (If cases-, cause ail abandonment (If all lprosectitioll. Tile framners of the Comistittutioil, w\Nho were fuillv awvare (If the iiecessity of llavhiig judlicial auithority exercisedi by our (olis~iils in non1-Christhian c )untries if conmimercial iilterc-onrse was to 1)e had -with their p~eop~le, inever couldI have supplosedl that all the guaranties in the adilinist-ration (If tile lawv up1)01 criiliiiials at hloime wvere to~. 1 I tiansferr-cd to suich coiisuhlr estab lishmilents aind appliedl before anl American who hadl commliitted a felony there (.0ul1( be accus-ed aild triedl. Thev 111(1st. have know-n that suich a requiremlent. w du~l(efeat tue iiaiil phirp1 '(5 of investing tile consuil wvith judlicial authority. While, therefore, hii one, aspect the A ilericani accused of cr~ime comninittell ii thlose countries is dleprivedl of tile guaranities (If the Constitution against unijust aceulsatioil null ail iinlartial trial, vet in ailotlier a-spect lie is the gariner, in b~eing wvithd~rawil froii tue prloceduire of tiheir nrilutilals, often arb~it~rarv andl op~pressive, aind somnetimes acel Iiipanie~l. xvitlh extrem-e cruelty and torture. (Ini re R os s, 1 40 U. S.,~ 463, 465.) The right of Congress to confer jurisdiction ini c.ivil matters upon conisullar courts was declared to exist by the United States Supreme Court in Dainese v. Hale, 1U S., 13. The constitutionality of Congressional legislation regarding consular courts is discussed and. sustained in the following' cases: Mahoney v. United States (10 Wall., 66', 67T); In re Joseph Stupp (11 Blateliford, 124); United States v. Craig (28 Fed. Rep., 801), (opinion by Justice Brown); United States v. Smiley (6 Saw., 645), (opinion by Justice 59 Fields); Steanier Spark r. Lee Choi Chum (l Saw. 7138); Tazaymon?e. Twonbly (5 Saw., p. 79): The Ping(on (7 Saw.. 483); Tlie Pingon (11 Fed. Rep., 607). Ptursianllt to the provisions of Title 47, sections 40S3 to 4130, the United States is maintaining coiisillar (olirts ill the following countries: Chinia. Korea, K: k, Maskat. orocco, l'Pesia:. Samloa. Siamll Tongal' T'Iurkey, tanld Zanzibar. This Government also laintained 'consular courts ill Japtan up) to,July' 17, 1899, when 11 tile 1e trecaty with,lJapal, whlichl abolished these colurts welt into effect. The right of legislation ill regpard to consular couirts il territory within the jurisdiction of a recognlized sovereiglnty with whlich the United States maintains 'foreign relations is to })e exercised ill accordalnce with existing treaty stiptilations in reg'ard tlhereto. lThe right is not create(d }by the treaty, butlt is simply reg'ttlalted thetreC'(. ConIsular courts are instituted and maintained il coulltries sublject to tle dlomiinion of semicivilized or b)ar}barous peolple whose chieftains we (lo not reco'gnize as possessing sovereiogn p1owvers and withl whlos governllient we (do not make trea'ties nor ltlaintain foreign' relations. Section 40(S, Revised Statutes of the United States, is as follows: The consuls and coimmercial agents of tlhe tnited States at islands or in countries not ilhal)ited )vy any civilizeld people or recognlized 1by any treaty witl thle lnited States are authorized to try, ear, andl letermiine all casles il regard to civil rights, \w-lether of person or prolertv, where tlle real ldelt or ldalmags do not exceed tlhe su11l of $1,000, exclusive of costs, and, l(up full lharilg of tlle allegations anil evi(delce of lotli parties, to give judlgmellt according to tlie laws of t':e Vlnited States and according to thle equity anll rightlt of tlte matter, in tlhe salte manner as justices of tlhe laCue are now authorized and emlowe\redl w\here tlhe lI-ited States have exclusive jurisdliction. They are also investted witli tlie powers conferied by the provisions of sectioll 4086 anll 4087 for trial of offenses or m1'isdemeanors. Regarding tilis section Attorney-General (Garland said: The jurisdiction tlhus conferredl is b)ased lulon tlhe well-received loctrine of international law that consuls in barlarous or semil)arbarous States are to be regarded as investing witlh extraterritoriality the place where thleir flag is planlted(, and if justice is to l)e administered at all, so far as concerns civilize( foreigners visiting such States, it must be by tribunals suchl as are natedl in section 4088, Revised Statutes. (1S A. (;. Op., 219, 220.) The United States has acquired and still retains certain rights in the Samoan Islands. Wharton's Internationall Digest, Vol. 1, sec. 63, contains the following: In MLarch, 1872, certain coimmercial arrangements were made by Manga, chief of Tutuila, and commander Meade, of the U. S. S. Nlarrtgantsett, for the use of the port of Pango-Pango. According to a summary in the Nineteenth Century for February, 1886, "It was arranged that Pango-Pngogo should be given iup to the American Government, on condition that a friendly alliance existed between that island and the United States. Pango-Palngo Ilarlbor 1las thus )passed forever from the hands of the British.'' 6( Tihe riglts so ac(lquired were subsequently (onfilmed by1 treaty between the t nited States and the (Governnlent of the Sanloan Islands (Janulary 17, i187). Article 11 of stid treaty is as follows: Naval vessels of tile Ilited States shall hlave the Iprivilege of entering and using tlhe lort of P'ango-Pango, anl estal)lishing tierein an(l on the shores thereof a station f,)r coal and other naval supplies for their naval and co)lller(ial lmarine, andl tlhe Sammoan Government will hereafter neither exercise nor authorize any jurisdiction withlil said(l ort adverse to such rights of the l nitedl Stales or restrictive thereof. Although Congress has legislated 1as to ]low anld by what means thle rights securled 1by the. United States inl tle Samloan Islands are to )(e exercised, it has never l}en claillle(l that the l)oundaries of the IUnited States had been extended to includeI any of the territory constitutilg the Samoani Islands. rhe reas.1on for this is that neither by direct legislation or llecessary intendmlent has Congress eve Illanifested its assent to suchI extension. The right of Congress to create extraterritorial legislatiol is }tbased upion the fact thalt a citizenl of the United States passing without our territorial bloundaries is not therely- divested of the allegiance he owes this Governmlent nor the p1ivileges and( obligations arising therefl'roll. Wherever he goes he is entitled to (call for and receive the protection of the sovereignty of the tUlited States. This protection is to >be afford(ed to sul(h extent and in sucll manner and form as shall seem adequate and proper to that sovereignty. Under our forml of goverlniment the authority of declaring the will of the sovereign —i. e., the people of the United States-is vested in Congress. This privilege of protection by his sovereign enjoyed by a citizen carries with it all obligation on his part to respect the will of his sovereign; that is, to obey its laws. If he refuses to respect this obligation, the sovereign may reach out to punish hinl as it is bound to do to protect himl. The will of the sovereign of the VUnited States in regard thereto is made known by Congress. Here, again, Congress acts in harmlony with treaty stipulations, if any exist, but the right to enforce sovereign authority over its citizens is not created by treaties. This brings the discussion to the question, Are the inhabitants of said islands " citizens " of the United States? If by " citizen " is meant "a mlenmber of the civil state, entitled to all its privileges," the question must be answered in the negative, for even in the treaty it is provided that "the civil rights and political status * * * shall be determined by the Congress" (art. 9), and Congress has not yet made such determination. Nor do they fulfill the requirements of the fourteenth amendment to the Constitution, for while they are subject to the jurisdiction of the United States they are not "persons born or naturalized in the United States." If by "citizen" is meant one who owes allegiance to our Governlment in return for the protection which the Government affords him, then the inhabitants are citizens of the United States. 61I That the inhabiatants of these ishands are entitled to( call upon the, United States, to protect themt in their rigrhts of p)roperty anld pesl Preseieve the public 1peac((, nauntain Izaw and dr and prev~ent encroachments upon the territory byv foreig~n nations cani not. he denied. Correlatively, the inhabitants owe alleg-iance to the sovereiopntv and obedience to the laws whereby time sovereignity ulndertak-es to d1ischargre the 01)1igat ion. Thev sovereignty tand jurisdiction of the United States having lattached to said islands, persons continuinig therein are subject to tht-e ltaws, puLt in force therein bvth.Unt(I States, without regard to their citizensh4ip, with such exceptions as are in force ill other territot.y subject to the, jurisdiction of the United States. iReo'ardino' thle citizens of the United States who were (hflniciledl in the town of C'astine -while sublject to) nulit-ary occupation bY the forces of (reat Britain duringr the war of I142, the United States Supreme Court saye (United States v. Rice.- 4 Wheat.. 247. 2;-4): Dy the conqjuest. and muilitary oecupation of (astine the enemyl acquire(1 that firin possess.,ion which enabledI huim t~o exreri'se tuec fullest ri(Ihts of s0ove-reigrnty ()ve(r I hat phlcie. The sovereignty of the Un~itedl S~tates over tile territo-ry was, of course, s4uspen~lel, an(1 the, laws of the Unitedl States cu(001(1)1 longer I e r-ightfnli v enforeed there or 1 e (()1 igatorv upon the inlhabitants WI)() remained4 and Submitted t. the (,onlplerors. By the surrender the imnlalbitants passe.1 111ioer a teniporarv allegiamie to hi( British (Gm(ernmnent, 011(1 we re bound 1 (v sueh laws,1 an1d Such~ only aIs it c(ill SC t( ) rec(.gnize 01n( 11n1)01. iontile Ilatlre ( f the case n0 o-the(,r laws coll1(I he obi- iatory i11pon themn, fo r wlieire there is, 11( }p1(teet il (1)(1 al ie-iaml(e orw sovcrei~~m tv there can be 1)0 clain to Obedience. Certainly the sovereign1tv o)f the Unm~ited s-tate-s iiav e~nforce against the sillijeet's of another sovereigmiltv a 1 Illie it i-~ willinlg' to apllly to its~ ownN1 citizens.. Regrarding- tim powers o)f ( o () ver- Alaska. DI )a-son. J.'.S-li(1 (29 Fed. Rep.. 20)5): Po)ssessing tile Ipmver to c rect 0 Territorial gvenNcl-llelllt fri Alaska,' flhey could c(1(1 r 1111))) it 511111 powers, jud ieial a1n1 exeeutive, as they Icein 111115t Sulitable t) (tile Ileccossit ies ( (f tile inhlabitants. It woos i mlpletioi il i IItiil ti II10op1 st t I It i0~(0)0I p00I (c r 0-!fOw'SS to tr(ldiol(id /101, Ihl inhbimdOts )fJ — I osk'o the" power toIqislo/if((/ mod owke i1ors. III the( absence, thlen, of an m io )ookin pooer io tile territory. to what. s( irce nius~t. tile icwl)ide 10ok for tile Iaw bv w hieh thley are to be governed?) liis q1uestion can admit o)f I(lt only aimsmer. ( 01)1iega. is tile ((ill- V ImXl) llkim pm i~ver for. Aliaska. (I ilitedl States (- Nelson, 29 Foled Rep. 202, 20;5-206.) Inspakngot th(e pow~ers of Cong~re''-ss in ivis~latinlo for territory suhIjeCt to the juri odiction of thle U~nited States, but. outside of the jlurisdliction of any one of the Staftes of the lition. the circuit cmllr of appeatls. ninth (irellit. say: I t iuay legislate in) accordance with) thle special nlee(s of (0(1 1 h(ality, and( vary its regunlat ions to meet the condlitions and circumst4ancecs of the people. (Enidlemnan v. Unitd Sttes 86 Fed. Rep., 4.56, 4,59.) (3 2 InI Snow eo. United States-(1S Wall. 31P9) the court say: The government of thec, Territories of the U nitedi States belongs, Iprinmarily, to Congress; anscnlrl, tosclh agencies as Congress may establish for that purpose. 1)nring, the term of their pupilage as Territories they are inere dlependencies of the I7niteti States. Thitrp)eopl( (10 oot /0ontihdf /o //cot?rreifap/)o//C/. All political authority exercised therein is dierivedl from the General G overnment. Fronm the foregoing it seents mnanifest th it the legislative Powers o)f Congress are, coextensive with the authoritv of the United States, an1d that in legislating for territoryvand individuals without the boundaries, of the U1nited States Congress needl not conforin to the constitutional11 requirements regarding territory within t~he, boundaries of the Uni ited States and citizens domiciled therein. With the light of these, interpretations allorded bV judicial decision and Congressional action, let uts examine the Constitution itself:.Article I,,section 8, of the C/onstitution confers upon C/ongres-s the To define. and punish piracies" andl felonies comomo11ittelI on the high seas antil offtas1;cs against the law of nations. It c~an not be seriously contended that the hig-h sea-s are wvithin the, territorial boundaries of the, Unitedl States. Trhe people of the United States, in tadlopting this provisioni, recognized the, fact that the sovereignty of the United States was worldwide, and that suhel soveireignty could attach itself, and secnre jurisdiction to exercise authority at any vploint without the jurisdiction of another recognized sovereign tv. [he p)rovision regarding ' flne agrainst the lawv of nations" is a1 siminihr recogm itioin. By tihe lawi of nations, when anI i nvacling army has driven out the opposing, sovereign andl overthrown the, existinwg "oeiM uen11111t, the invader is lbound to replace sai(1l grovernment by one of his own. The Brussels; project o)f an international. declaration coinceriling) the laws anld custonis o)f warl providles as follows: Ainv. 2. The authority o)f the legal pm/ er I eing suspendedl, anti having actualtly passe/i jilt/ the hands of the occupier, hie shiall take every step in his power to ricestalblish anti secure, as fa-r as, possible, 1//blit safety anti social ordler. S-ee al~so section 4:3, Recollmmendations, of Institute o)f Internattoimal1 Law. Oxford Sessiotl, 18811: sectionl 1, Lielber's Irlstriictions for- the G'overnment of -Arulies of the tUnited States ~in tile Field. (G. 0.. iou, AV. O... 1863.) Iii anllCient tillies (t'ovelinllents of thlis~ character wvere administered accordinig to the, acceptedl doctrine: ' The will of the, conqueror is the law of the conque'red." This (loctrine, is stifll recognized as a law of nations, bUt has, been so mmoditied byA moderni usage as to deprive it ot its- terrors. Without stopp)ingO to dlisculss these modifications, aIttention is directed to the fiact that in the, instanlce; with which wve hatve to deal the '' conqueror "is the, sovereign people, of the United. States.~ (;3 Under the distlibttion of powers mlade by that sovereign its "' ill" is to h1e mlade known by its Congress. Inasmuch tas the people of the United States, i. e., the sovereign of the United States, is required to estalblish governmlent in such territory, any interference or obstructioin by the inhablitants seekin to pre(vent the discharge of this oblligation wouh l)d e an o'ffense against the law of nations, unless persois taking suicl actiosn attlre iln trm'111s by autlhority of and in defense of the prior sovereignty. Article I, section S. of the Constitution also(, conlfers 1upo Congll'ress, the authority — To declare war, grant letters of mllarqlue anll relprisal an(l miake rules 'co(cernilnr captures on land alnd water. Until Congress shall chanlge their character and condition the islands under consideration will remain "capltures," the possession of which by the United States has }been confirmed by the treaty of peace. "Captures"' only in the sense that tley- are to be legislated for }by the Congress of the United States, whose enactments thave been of such character that the country and people heretofore sublject thereto lare the envied of enlightened humlanit less favorablyl circumstanced. Article IV, section 3, of the Constitution provides thatThe Congress shall have power to, dlisp)se of and nmake all needlful rules and regulations resplecting the territory otrlier IprloIerty belgolninr to tlie I litedl States. This clause Iwas drafted )b (G:ouv1erleur Morris. Fifteen veal's after tli al(doption of the Constitution, ill answ:er to a question as to the precise meaning of the (cl1ause, lie rote: I always thought, when we should acquire ('anadla a1lnl I, oisiana, it w-m, lld 1e lpoper to gover(nll tlllem as prov\illces andt allow tileam 1io voi oe in ou r (onlllils. In wording tlhe thirl section (,f the fourth article I wlent as far as circumstances w-oul permit to establlish tlie exclusionl. (- Morr. Wr., p. 2.) Reg(arding this clattuse ill the Co(nstituttiol tlhe Suplrele Court say (14 Peters, 537): The termn territory, as here used, is merely lescriptive of olle kinid (f Iproperty, andl( is equivalent t,) tlie wo-(rd lands. And1( Congress has the same p}ower (o\er it as over any other lproperty bIelmnging to tlie Uniteld States; an(l this powe\r is vestedl ill (Colgress witilout limitation; and hlas been conllsi(lere(l tle fudildation upoll whichl tlhe Territorial governiienlts rest. (United States r. (ratiot et al., 14 I'et., 524, 5:37.) 'lle decisions of the courts uniformly sustain tlhe doctrine that by this provision of the Conlsstitution Cong1re(ss is givell tle powXer to govelrn those portions of the lputtlic d(olain lying outside of the boulndaries of tlhe several States of the Union. in tle 1mannerl and 1}b tle lmeans which to Congress seenl best adapted to existing conditions, ranging from a joint protectorate, such as is exercis.ed over Samolll to a Territorial government of well-nigh sovereign power, such as exists in Oklahoma. 64 Rlturning to Article I. section S, we find that Congress is thereby enlpoweredTo make all laws which shall be necessary and proper for carrying into execution tlhe foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any departmenlt or officer thereof. The Constitution specifically vests in the (:overnment of the United States the authority to engage in war. If it is conceded that when englaged in war th3 Urnited States is bound by the law1 of nations regulating civilized warfare, it follows that its first and lalramount duty is to compel a peace, and for this purpose it may wrest fironl its adversary all tan(l every means of coltinuing the warfare. This includes not only guns and( ships, )but public revenues and other property, the allegiance and support of subjects, territory, dominion, and sovereignty. Having wrested any or all these from its adversary and reduced them to its own possession, the laws of nations, the interests of civilization, and the dlictates of hullanity all imlose duties and obligations in regard thereto upon the (GovcrnmeIllit of the United States. 1B what imeans the duties tand obligations so arising from the acquisition of the islands under cons.ideration are to be discharged, and the general principles g(o)ernllilng the use of said 11me1ans, ias already beeni discussed herein. That the sovereignty of the United States would attlach to territory witlhout its territorial boundaries, tlat jurisdictioln over such territory would le attained thereby, and that Congress would lbe required to legislate therefor, is plainly recognize(l and asserted in the thirteenth aill(endIllent to the Constitution, as follows:,SECTION( 1. Neither slavery nor involuntary servitude, excel)t as a punishmlenl t for 'crile, whereof tlie party shall have been duly con.victed, shall exist within tlhe Ulitod States, or any place subject to their jurisdiction. SiC'. 2..Congress sliall have )power to enforce tils article by a)pproplriate legislation. \What is melant b} n " lla u place subject to their jurisdiction," if not such ter1itoiy as that with which we have now to deal If said lan(guage wa\i s ilntenle(l to designate those portions of our country in which} Territorial governments were estalt)lished, it follows that the other sections of the Constitution, from which said clause is omitted, are not in for'ce in the "Territories," and Congress may- extend the )boundaries of the United States to include said islands, erect Territorial gove-rnments therein, and legislate therefor without such legr islation beino slubject to the provisions of the Constitution or the territory or th( inhabitants being entitled to the benefits, privileges, and innmnllities creatied l}v the Constitution. Regardini the exercise of these great powers, the United States Supreme tCourt say: Congress mnust possess the choice of means and must be empoweredl to use any means which are in fact conducive to the exercise of a Iowelr granted by the Constitution. (United States r. Fisher, 2 Cranllc, 3,58. 65 I~et thle eniil I)e legitimate, let it 1)(, \ithin tile sco(pe ),f tle ('onstitutio,, a11l all nlellas which are alpplrolriate, wIhich are plainly adla-ptedl to tlhat end, whlich1 are not I1prolil)itel, l)ut colesist withl tle letter and spirit of the Conlstitution, are constitutional. (M(lCuilloch v. MIar!lan(l, 4 W\lheat.,:l16; lrigg r. I'clnnsxlvania, 1 Pl'et., 539.) If a certain lleans t, carry into effe(t any ()f tlhe-)vwers ex) ressly given.by thle C(olnstitution to tle (;onllllenllt of thle Ul'lion lie anl aplroiriate mlleaslre, ii(.)t )prolhiliited 1.y the Constitutioll, tlie degree {of its nllecessitv is a lluestiol of legislative discretionll, inot.of judicial cognizance. (I(ICCullo(h r. MIarxylad, 4 Wleat., 316. If these isnllds tInd their inhallitalts are withouet thl(e a'is of the Coinstitultion. what then is their l)pro(tection froli an'i oppressi ver ( - it (ltl land njlust ltt-s ' The answer1 is )llni. Sutch 1p otectioll is founld ill the chlaracter (,ai( eilililitenll ent otf tlhe w sovereig' n withlin w\lose jurisdiction tlhey nlow are, to wit, tlhe sov(rl(igll peopl)le of thle 'United States. Thev are a: cll arg1 e tl)pon thle con'(science of thalt sovereigns, and tile 'ilaliclable rit l ts" of a pceople are safe ill that custody evyen wNhell Inot guarallteed b}) the letter of, the C(onstitution, for they are protected by laws hiohler tlhan the C(onstitutionl, being the law\s of American civilization. the (moatl sentiment, of tlhe nation pervatding all o0ur institutions:and from whlichl even the Constitution (Ic'i\-es its force. In.1ohnson,'. McIntosh (S Whe\lt.,.89) thle ['iited(l States Suprl)ic e Court. speaking by Marshall, (ClI. J., say: IIlumality, acting on Iiublic opinion, las es:iablishlled as: a general riile tI at tlhe c{,(iieredl slal ii lot 1be waltoily oppiressed 1, anl t1lat tleir ( m{,litil slidllI reIiCaii as eli.i )le as is comllatiblle w-itl tlle olojects of t et. * liPs (,ic l)illiomn, vIhiclh ill, t even thle collyueror caii (lisrXeg^arl, impiosacs tliese rcstraiiits.mi)oi bIiun, and lie (canl not neglect tlleni witliolt injury to lhis faime anll lazard to his loxver. The candid judolnent of all mntust concede ' thlit this Repu})lic has 1(d) lesire t() op)press any ()of the ilnhablitants (of these islandls. }tut e'tnestlyt wishes them pealtce. proslp)erity and thle largest deg('I'ree of libuerty consistenlt with ti(he niainteo:nance of individual i'i(lits and collective tranquillity." Can an11yone doubt that President 5McKinley uittered the sentiments of thle nation when, it Boston. i Feb}ruary, 1899, e said: No) imlperial design lurks iil the American iuinil. That woul'l be alien to Amneri(ai stentimlient, thoughlt, aind p1url)se. ()ur priceless lprincilples un(lergo no change under a tropical suni. If we can benefit thlese pe)ple, who will object? If in years tlhey are established in governmenit ulnder law and liberty, who will reg(ret our perils and sacrifices; who ANill not rejoice inl our heroiisml andl hunmanit'y? I have lno light or knowledge no(t eolllll(oi to ly countrymnen. I (lo ilot p)r.oohesy. The lp)resent is all absorbiug to me, but I can not bound 1my' vision by the blood-stained trenches around Mlanila, where every red drop, whether fromn the veins of an American soldier or a misguided Filipino, is anguish to mny heart; but by the broad range of future years, when the group of islands, iunder the ilmp)ulse of the year just passed, shall hiave become the gemns and glories of these tropical seas, a land o(f plenty and of increasing possibilities, a peolple redeemed from savage indolence and habits, devoted to the arts of peace, in touch with the coiniuerce and trade of all nations, enjoying thie blessings of free(lom, of civil andI religious libertxy, of education and of homies, 1394-(3- 5 (66 and whose children and children's children shall, for ages hence, bless tlhe American Republic because it emancipated and redeemed their fatherland and set tihem in the pathway of the world's civilization. And thatThe treaty now commits the free and unfranchised Filipinos to the guiding hand and liberalizing influence, the generous sympathies, the uplifting e(lucation, not of their Amlerican masters, but of their American emancipators. The fi^zms, the ways and means, the governmental agencies b}y which this Republic will carry out its benevolent purposes and discharge its duties in regard to these islands and their inhabitants, are matters addressed to the discretion of the Congress and are not understood to be within the purport of the inquiries upon which this report is made. II. The decisions of the Supreme Court of the United States regarding the acquisition and government of new territory by the United States established two propositions beyond controversy: 1. The United States as a sovereign nation may acquire and govern new territory. 2. The government of territory acquired and held t) the United States belongs primarily to Congress and secondarily to such agencies as Congress may establish for that purpose. As to these two propositions, the Supreme Courlt of the United States say: These propositions are so elementary and so necessarily follow from the condition of things arising upon the acquisition of new territory that they need n o argument to support them. They are self evident. (Mormon Church r.TUnited States, 136 I. S.,43.) It is, however, necessary to examine the character and extent of tlle power of Congress in the matter of such government and legislation. In 1810 the Supreme Court of the United States said: The power of governing and legislating for territory is the inevitable consequence of the right to acquire and to hold territory. Couldl this position be contested, the Constitution of the TUnited States declares that "'Congress shall hav-e power to dispose of and make all needful rules and regulations respecting thle territory or otlher property belonging to the United States." Accordingly we tinl Congress possessing and exercising the absolute and undisputed power of governing and legislating for the territory of Orleans. Congress has given them a legislature, an executive, an( a judiciary, with such powers as it hias been their will to assign to those departments. (Sere r. Pitot, 6 Cranch, 332, 336, 337.) In the United States v. Gratiot et al. (14 Pet., 526, 537) the court say: The Constitution of the United States (art. 4, sec. 3) provides "'that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." The term territory, as here used, is merely descriptive of one kind of property, and is equivalent to the word lands. And Congress has the same power over it as over any other property belonging to the United States, and this )ower is veste(l in Congress without limita 67 tion, and has been consideredl the foundation upon wh-Iich the Territorial governments rest. In the caise of 1(-Culloeh) r. TIhe State o)f Maryland (4 Wheat., 422) the Chief Justice, in giv ing the opinion of the court, speaking of this article, andl the p)owers of Congress grow~ing out of it, apl)lies it to Territorial. governments, and says all admit their constitutionadity. And again, in the cas~e of the Amierican Insurance Company v. Canter (I~ Pet. 542~), in speaking o)f the ((551011 of Florida under the treat" with Spain, hie s.iys that. F lorida, until she shaill 1 ecoine a State, continues, to he a Territory of the U nited States (Governiment by- that clause in the Constitution which einpowers Convr'ess, to imake all neec ifil ruiles anid regulations respecting the, territory or other property o)f the United States-. If such are the p~owers o)f Congre'ss, over the lands belongiiig to the United States, the wvords ''dispose Of '' cani not receive the construction contended for at the bar. ***The (lisposal iiust )e~ left to the discretion of Congress,. In Gibson ~,. Choteau (13 Wall., 92, 9(9) the court say: With respect to the public (domain, the Constitution vests, in Congress4 the lmwxer of disposition andl of making all needful rules apld regulations,. That 1powNNer is suibject to no limnitations. This miust certa-inly be the rule so long, as- the ter-ritory remains u r qaie;that is, so longr as it remains simiply a part of the p~ublic domain or property of the United St~atcs wvhich has not had conferred upon it the character of a State or a TerritoryN with tiie rigrhts, apperttainling to such political entities. The reason for this is, that the ter-ritory is- acquired by the Inlited States in the exerc.ise of sov('reign poweis. A-s was saidl of Loiiisitiiua, ''[his territory was plirichasedl iy the, United State's inl their rubci ate~ ( Cty/." The territory when so tacquir-ed is held and govern-ed by tlime sov('reign power of the nation until such tim(' as the political lbr-tlnch o)f the', Governiment-i. e., Cong~;ress anid the EXecutive-shall (leter-mime whether our tenure he tempor-ary or. perm-lanlemit., anid. if 1)ermiiilnciit, what form and ch-aractiter of local groNvermninemit shall be conferred thereon. (See authorities al)oye citcel.).Also Snow- v. United States (18) Wall., 31i7. -820): Benner /-. Porter (9 How., 235,) 242); MAurphv i'. Ram11sey. (t- [4. S., t[5, 44); Nationial Bank v. Yank~ton (rot U. 1S.. 1219. 1.38l); MA0-1ormo Chur1chi P. Uinited1 States ([36 U. S., 1. 42). The sov'ereigin powers of the people of the, United States are not limited by the restrictions placedl by that, soverignc onl the inst4runelt's anil agents by' which certain of the functions of the G-Tovernmieiit mainl~tained by that sovereign are performed. The sovereign powers existed before the nation was formed. The founding of the nation assembled these sovereign powers, and the question arose as to how these powers amid what ones should be (liqtributed. The distribution was at firs,,t attempted by the Articles of Conf ederation. The practical wor kings under such distribution proxved unsatisfactory, anid redistribution was made by the adoption of the (AS8 Constitution. But not all the powvers of sovereignty belong-ing' to sovereig'n Ipeople of the United States were delegated to tand distributed amiong') the agencies of o'overnment e-stalblishe(1 by the Constitution. The enumeration in the (onstitution of certain rights- shall not be constrne( to (leux or (lisp)arage others retaine(1 by the lpeolple. (Nint hialnen(linelnt.) The P)owers' not. delegatedj to( the I nited States l)y the Constitution,1 1101' l)r'0l1il)ittvd by it to the States,, are reservehl. tI.) thle States, reslpectivelv, or to the people. (Tenith InI the redistributionl of s~overeign-I powers ma1"de byA the people of the United States '~in order to form a more perfect U nion," and evidence(1 by the Constitution, it wa,-s provided that inl all inlternal (and (lome1(stic relationls the St~ates sh1ould continue to exercise till sovereign powers inot. specifically surrendered to the (General Governm111ent. Therefore whei'e the Powxer is not c'onferred by the Constitution the Genlera]' G( Wover'iliient has no auth~ority in] matters arisilig from interlal11 an11d domlestic relations. But inl international relations the reverse is true; the Greneral or Nationail Govrnm1111ent exercise~s every sovereign p)Ower —.iot expressly Prohibited by the Constitution, for the reason that the Natioinal Government iii 0our interniationali relations represenltsthe, sover-eignl People: the Sftates have 110 iinterna~tional standing. Powvers. or existenice. ti'l the d(eb~ate onl the Louisiana Purchase, Mr.- Sanford (Kentucky). iii,siippoi't of t~he tre tysid: The Con11stitutionl doe1) t ~p(11iibit thle p~ow~er exere 'isedl mid l. ot, havilmg pr 11ibitc I thleml, they lmulst lbe (coiisi(lere~l as I o)ssessed by the (.i vernmlenlt. (Annials of Cong., 1803-4, 1). 451.) Undler the lasof civilization all sovereigrn na-rtions havt\e epual i'ightAs. t1111( ellual l)0wen inl the broad field of international rel'ations. 'Il eir (lomiestic (constitut ions nuld var'ied restrictions aire not known..1 n the Chinese E'xclusion Case our Suprem-e Couirt say: While nioler our Constitution and forml of governmlent the gYreat maiss of local matters is controlled byv local authorities, the United States, in their relation to foreicm countries andl their subjects or citizens, are oiie liation, invested. with powers which belong to indlependlent nations, the exercise of which can be invoked fo.r the maintenance of its al sol iite ilndelpeildence anul security throughouti its cut ire ternitory. (The Chinese Elxclusion Case, 130 U. S., 581, 604.) InI Lane County r. Oregon the Supreme Court, sp)eaking by Chief Justice Chase, say (7 Wall., 71-76A): The people of the, United EStates constitute one, nation under one governmenit, annd this government, withini the scope o)f the powvers with which it is inivested, is supreme. Onl the other hand, the peop~le of each State compose a State, hlaving its own governlment, and~l endIo~ved with all the functions essential to separate and in(lel~endent, existence,. The States disunited might continue to e::ist. WNithouit the States in -union there couldl be no suich political body as the United States. Both the States and the United States existed before the Constituition. The people,. through that ins-trumnent, established a iiore lerfect union by substituting a national (;) governllment, acting witll animle power, directly upon tlie citizels, instela of thle confederate governmlent, whlich acteld witli powers, greatly restricted, olly upon tile States. But in many articles of tte Constitution tlie lecessary existence of tlie States, anll, within their proper spheres, the intepen(dent authority of the States, is distiiictly recognized. To tlleml nearly tle whole charge of ilnterior regulationl is c(mmlllitted or left; to thtenm adll to tile people all powers no t expressly dlclegated to the National (Toverlllllenlt are reservedl. In the case ( In re1 Neagle (135 1. S., 1) Ir.,lusticet' IJ:lI (with whom collcurred IMr. Chief Justice Fuller) disselited fr'om( the dec(ision of the court that the killing of Terry was " tan act doie ill pmtrstaice of a law of the Unit(ed States" (p. 40). II (liscussing the forlign relatiois of the United States Mr. Justice,La:mar said (pp. 54, S5): The Federal (overnnllllt is tlhe exclusive relwresenltative anll c emodl)(,illmclt of tlie entire sovereignty of tile iationi in its unitel l caracter; for to fIoreigtn nations alil ill our intercourse witl themi, Statetatalte groverlinmenlts aid(l even tlte ilnternal adljustment of Federal power, witl its comnlllex svstemll of chlecks andl blalaic'es, are munkll(Xowl. anll tlle,illy authority tliose iationis are pernlittel to, deal w itl is tlie autlhoritv of tle nlationl as a unit. These sovereign poXwers are to (be eXeCrcised( 1 y thalt }branch1 of o()1 (lovernellll t (charg'ed1 withi tlhe tainteinance of the internaltion"al relations of tlie United States, to wit, (Co1ngress altn the Executive. In the Legal Tender Cases (12 Wall., 554) Justic(e BIlradley said: The (onstitution ( of the I nitedl States establlislhed a grovxerinient, aild lo,t a league, coll)act, or partnershiip. It was c('nstitutte(ld i tile ( pelIle. It is calle(11 a go veirnIeIlct. In tle eighrtli sec(tion (f Article I it is dIeclarce( tllat ((,ngrress sliall 1hlave I(pwer to maike all laws whlich sliall be necessary anlIl Irolper for carryinlg iiito (eecuxtiol tile foregoing powers, and all (otler i owers vested by tilis ('onstitution ill tie' (w',o''roiief0' O!f'te Ulited Slil%'tts, or in anyll deilartmlent or otlice thereof. As a governmllenllt it was 'invested witll all tlhe attriultes (f sov'ereiglt. * '*, Thle UInited States is nlot only a ( overn'llnlllt, Inlt it is a Natiol nal (;ovrnllllln(t, land tlie only- government ii tills cunlltry tliat hlas tl(e (cllaracter of iatiolalitY. It is investedt with p)ower over all foreign rlelations) of thle co'ltry, leC'er, t1111l negotiatiionls and( iriterc'iurse with other laitiIlns; all \whilch are forlbidldenlt t, t lie State governmenllllt. * * Such ileilng thle character (of tile (Gelleral (;vernl'lent, it seet(ls to b)e a self-evident proposition that it is investeld withl all tlhose inlheretlt and illliedl ipowers whichl, at the time of adlopting tlhe Cllstitutioll, were generally cIonsidheredl tI lelong tl tevery governllent as such, all as being essential tO thle exercise of its functions. If this proplositioil he not true, it certainly is true tlhat thle (;overnmienit of tle IUnited States hlas express autholrity, in tile clause last quoted, to niake all such1 laws (usually regardled as inherent anil iiplie(l) as may l)e necessary and proper for carrying on the (;overninent as constituted, and vindicating its authority and existence. Plroblly no more important case was ever submitted to the Supreme Court of the United States than McCulloch e'. State of Maryland (4 Wheat., 315). Probably nothing has done nore to make the name of Marshall great than the famlous opinion which he delivered in that case. With what realizing sense of the importance and far-reaching effect of their action the court entered upon the determination of the 70 questions presented is shown by the openi~ng words of the opinion (p. 400): In the case now to be (letermined(l, tle defendant, a sovereign State, denies the obligation of a law enacted b the Iegislature of thle I ninl, and the plaintiff, onl his part, contests the vali(lity of an act which Ihas b)eeln passed by the legislature of that State. Thle Constitution of our country, in its Imost interesting and( vital parts, is to be considere(l; tle conflicting lpowers of tilt (;oelllellt of the e Union and of its mlemnlers, as marked in that Constitutionl, are to be (liscussed, anl an olinion given whlich Illay essentially iifluence t.le great operations of the (overnllent. No tril)unal can apprIoacll such a q(ueIstion without a deep sense of its i~mportance, and of the awful responsibility involved in its d(ecision. But it mulst be decided peacefully, or remain a source of hostile legislation, lerhal)s of hostility of a still more serious nature; and if it is to be so dectided, by this tribunal alonle can the decisionll be made. O(n thle Suprenme Court of the iUnited States has the (Constitutioni of our country devolved this importantt dluty. ReIgardinog the character and scope of the legislative polwer of (0ong'ress, tile opinion declares (p. 411): But the Constitution of thie United States hlas not left the right of Congress to emlploy the necessary mleans for the execution of the po-ers conferred on the (Government to general reasoning. To its enumeration of powers is added that of making "all laws which shall l)e necessary an(l lr()per for carrying into execution the foregoing porwers, and all. othler lowers vested(l b this Constitution in the (Toverlment of the Ulnited States, or in an detlartnlent thlereof." The counsel for the State of lMaryxland have urgedl various arguments to pIrove tlhat this clause, though in termsl a grant of power, is not so in effect, inut is really restrictive of thle general right, which might othervise lbe imlplie(l, of selecting thle means for executing the enumerated powers. In1 suj)port of this plroLosition thley have found it necessary to contend that this clause was inserted for thte purpose of conferring oil C(ongress the power of nlaking laws; that without it d(oub)ts mlight 1)e (ntertaine(d whNethier C(ongress could exercise its i)ow'ers in the forin of legislation. But coul(l this be the object for which it wvas inserted? A governlment is created by the people, having legislative, executive, and judicial p)owers. Its legislative powers are vested in a Congress, whichl is to conslist of a Senate and HIouse of Rep)resentatives. Each l-Huse llay (letermine tlhe rule of its procee(lings; and it is dleclared that every bill whiclh slall have passet( both HIouses shall, b)efore it becomes a law, be presente(l to the l'residenlt of the TUnited States. The seventlh section describes the course of proceedings by -which a bill shall become a law, andl then the eighth section enumerates the powers of Congress. Could it be necessary to say that a legislature should exercise legislative powers in the shape of legislation? After allowing each HIouse to prescril)e its own course of proceeding, after (lescribing the manner ill which a bill shoull become a law, would it have entered into the mind of a single Imenler of the convention that an express pIower to Imake laws was necessary to enable the legislature to make them? That a legislature endowed mwith legislative powers c an legislate is a proposition too self-evidlent to have been qluestionedl. But, the argument on whicllh ost reliance is llaced is drawn fromn that peculiar language of this clause. Congress is not emlpow-ered by it to make all laws which imay have relation to the powers conferred oil thle ( overnment,:but such only as nlay be "''ecessar! /,(d1 proper" for carrying tllenl into execution. The word " elcessasry" is considered as controlling the whole senteiice, andl as limiting tle right to l)ass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of imeans and leaves to Congress, in each case, that only w\hich is mIost direct an(l simple. 71 Is it true that tis is thle sense in which the w\ordl " necessary'" is al ways used? I)oes it always illmort an absolute physical necessity so strong that. one thing to which another imay be termed necessary can not exist without the otlher? We think it d(oes not. If reference l)e had to its use in the common affairs of the world or in approved authors, we find that it. fre(lluently imports no lolre than that one thling is convenient or useful or essential to allother. To emplloy the mneans necessary to al end is generally understoodt as enl)loying any Illeans calculated to p)ro(llcnee the enld, andl not as tbeing confined to those single mlealns withoutt which tllhe enl woul( lbe entirely unattainable. Stuch is tile character of huminan language that no wo()r(l convevs to the mind, in all situations, one single detfinite idea; and( nothing is more common than to use words in a figurative senlse. Almnost all c onplositiomls ( ontain words which, takenl in their rigorous senlse, wouldl convey a Jleailnig (lifferent from that which is obviously intended. It is essential to just constructionll tllhat many words which import something excessive should be understood iii a mloore mlitigated sense-in that sense which comrrlon usage justifies. The wordl "lnecessary'" is of this description. It has not a fixe(d character peculiar to itself. It admlits of all dlegrees of colmparison, and is often collnected W\ith other words, whichl increase or dinillish the imnpression the mind receives of tile iurgenlcy it in-iports. A thing l may ble necessary, very necessary, absolutely or indispensablylv neciessary. To( no iuind w-ould the same i(lea be conveyedl by these several p)hrases. Tile (ollllllent on the word( is well illustrated b)y the passage citedl at tle )bar, from the tenth section of the first article of the Constitution. It is, we tlhink, iiipossil)le to compare the senltence wlhich( l)rohibits a State fromn laying '"iil)posts or (luties oil ili)orts or exports, except what may l)e (tbfsohutec!/ necessary for exectting, its illisectio laws,''" wit I that which authorizes Congress "to nlake all laws whicih shall be necessalry and I)roper for carrying into execution" thie powers of tlhe (;ill(eral (G;ovenmtllenllt, without feeling a conviction that the conventionl understood itself to chlange nlateriall the meaningg of the wordl ''necessary'" by prefixinl tile wor(l ''"asolutely.'' This wordl, then, like others, is used ill various sensese; and in its construc(ti(ii the sumlije(t, the context, the intention of the persomil sing tlellle, are all to be takenl iiito vieVw. Let this be done in the case un(ler consi(leratio(i. The sut)ject is thle executionll of those great powers oil whichl the welfare of ta nation essentially (lepen(ls. It nlust have been the intention of those wh{o gave tlhese powers t) insure, so far as tluman prudence could insure, their )Ieneficial executitin. This c(o1ld not lie done bly) confiding the choice of nieans to such narro- lilllits as not to leave it ill thie plower of Conigress to adoi)t any which mlight be apl)rol)riate and wlich were conll(cive to the end. This provision is inade inl a Constitution intended to endulre for lages to com)e, and, consequenltly, to lie adapte(l to the variouis crises of ihurnan affairs. To h1ave prescribed the means by which governllent should, in all future tinmes, execute its powers, woul(l have been to change entirely the character of the instrumlent and give it the properties of a legal co(le. It would have been an un1wise attempt to provide, by immllnutable rules, for exigencies which, if foreseen <at all, lnust have )een seen (illily, anld which can be best provided for as they occur. To have declared that the best mleans shall not be used, but those alone, withotit which the power given would b)e lingatory, would have been to deprive the legislatulre of the capacity to avail itself of experience, to exercise its reason, and to accomlnodate its legislation to circumnstanices. If we apply this principle of construction to any of tile powers of thle Government, we shall fil(l it so pernicious in its operation that we shall l)e com l)elled to discard( it. The powers vested in Congress may certainly be carried into executionl without prescribing an oath of office. The poNwer to exac(t this security for the faithful performance of duty is not given, nor is it indispensably necessary. The different departments may be established; taxes may be lmposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requireing all oath of office. It might be argue(l, with as imuch plausibility as other incidental powers have been assailed, that the convention was not unlnindlful of this subject. The oath which nlight be exacted-that of fidelity to the Constitution-is prescribed, and no other call be required. Yet, lie would be charged wvith insanity who should contend that the legislature might not supera((dd to the oath directed by the Constitution such o(ther oath of office as its wistdol migiht suggest. So with respect to the whole penal cod(e of the United States. Whence arises the power to punish in cases not prescribed by the Constitutionl? All admllit that the Government may legitimately punish any violation of its laws; an(d yet this is not among the enumerated powers of Congress. The riight to enforce the observance of law by punishing its infraction mliglit l)e deniie( withl the iliore plausibility because it is expressly given in somle cases. Congress is empowered " to provide for the punishment of counterfeiting tile securities and current coin of the U'nited States " and to " (lefine and punlisl lpiracies an(l felonies comnmitte(d on the 1igh:'eas and offenses agailnst the law of nations." The several powe\rs of Congress mlay exist il a very impllerfect state, to tbe sure, but they mlay exist andil be carrie(d ilito execution, altllougll n1o pulisilhment slould be iitlicteo, in cases whlere tlte riglht to punish is llot expressly given. Take, for examllle, the )power "to establisl pt ost-of-ices an(l p)ost-roads." This power is execute(l by) the single act of making tile establishmelnt. But from this has been inferred the power anlld luty of carrying the mail along thle post-road fromn one ipost-office to ainother. And( froml thisi implied power las lagain been1 inferred tlhe right to )pulislh those wlio steal letters froii tlie post-office or rot) the mail. It may be sai(l, wit}h some plausibility, that tlie riglit to carry tle imail an1l to pumnishl those wlho rol) it is not iindisplensably necessary to the establlislhlment of a l1ost-oftice andl post-road. Tllis right is indeed essential to the leneficial exercise of thle )ower, but inot in(lispensab)ly necessary to its existence. So of th}e llunishillientof tlie crines of stealilg or falsifyilng a record or process of a court of tile United States, or of perjury in such court. To punish these offenses is certainly conducive to the due a(dlminiistration of justice; b)ut courts may exist and miay decide the causes brought before them, though suc11h (crimes escal)e Ipumishmlenet. Thle baneful influence of tllis narrow construction on all the operations of the tGovernmlent and tIle absolute ilmpracticalbility of maintaining it without rendering the (;overnment incon)mpetent to its great obljects Iight bIe illustrated by numerous examples drawn fromi the Constitution andl froml our laws. Tlhe good sense of the )ipulic has pronounced, withoult lesitation, that the power of ImnllislIment ap)pertains to sovereignty, and may be exercise(l, whenever tile sovereign has a right to act, as incidental to his constitutional powers. It is a mneans of carrying into execution all sovereign powers, aln( mIay be use(l, although not indisp)ensab)ly necessary. It is a riglit incidental to the power and conducive to its beleficial exercise. If this limnited construction of the word( " necessary " Imust b)e abandone(d in order to Iunishl, whence is derived the rule which would( reinstate it when tle (Governmlent woul(l carry its powers into execution by mieans not vindictive in their nature? If the wordl " necessary " means " needful," "requisite, " "essential," conducive to," in or(ler to let in the power of punishllment for tle infraction of law, why is it not equally comprehensive when required to authorize the use of means which facilitate the executionI of the powers of goverinment without the infliction of punishmient? In ascertaining the sense in which the word " necessary " is used in this clause of the Constitution we may d(erive some aid fromn that with which it is associated. Congress shall have power " to make all laws which sliall be necessary an(t proper to carry into execution " the powers of the Government'? If the word " necessary was used in that strict and rigorous sense for which the counsel for the State of 73 Maryla(nd contend, it woul be al extraordinary departure froni tlie usual course of tlhe human mlind, as exhibited( ill complllositioln, to aill a word( tle only possilble effect of which is to qualify that strict and rigor(ms mleaning; to present to the miin tlie idea of some choice of means,f legislation not strainel antl compressel withil thle narrow limits for w\ich gentlemen contend. But thle argument which most conclusively deiimostrates the errorof tile c(instruction contelndel for l.y tthe ctunsel for. tne State of oMarvlal is foundel ln the intention of tle convention as lmanifestedl il the wl ole clause. rT waste time and argument in proving that without it Congress might carry its lpo(ers into execution woull be not mluch less ifle tlhan to liold al lighted taler to) the slun. As little (can it be required to prove that ill tlhe ablsence of this clause (ongrtess wo1ul lhave so(me choice of means; that it might enjoy those which, il its jultigment, \o(uldl mott alvantageously effect tlie olject to be accomllpilished; tliat any means adap)te( to the el(l —any means whichl tende l (lirectly to tle exetcutiii of the c(nstitutiomial powers of thle ()overnient-were in thenmselves constitutional. This clause as coinstruecd 1v thle State of Marylandl wtul(l abrilge andi a lmost allihilate tllis useful andl necessary rigllt of tile legislature to select its' mleans. That tlis iould not lbe intended is, we should1 tthink, had it not been already controverted, too apparellt for contro versy. We think so for tlle followinlg reasmos: First, tle clause is placel allong tlhe pl wers of Coingress, not among the limitations mo those powers.. Seconll, its term's purpo)rt to enlarge, inot to (dilminish, thle powers vestedl in the (;rvernmenlt. It l purpm)ts to )be an additional power, not a restrictioni oni ttose alreadyc grantedl. No reason has been or can 1be assigned for thus concealing an intention t)o narrow tlhe liscretion if tile National Legislature under w\lrdls whlichl p)urport to (elarge it. Tile framers of the (onstitutioni wise(led its adiloptionm, ail well knew tliat it would be eilangered by its strengthl, not 1)y its weakness. HIad tlhey\ leen capable i)f using language which w\mldl c(omve to the eve icne ileta and, after d(eei rellectioll, ipress on tile llmill anolther, they wouldl rathter have dlisguiseil tlhe grant of lp\wer tlhan its limlitation. If, then, their intentioon had lee1ii v ttis clause to restrain tle free use of mieans whichl i igh}t otherwise have b)een ilmpliedl, that iltenltio{ wiiull have b)een inserted iln another ilace ainl -woull have lbeen eXlressed il terins resenmlblim tliese: " In carrving iinto execution thle foregoinlg poxwers ano all others," etc., "no laws shall )le passed libut such as are necessary anll lprolper." IIHa tlte illtenltiio b.eeii to make tllis clause restrictive, it wonull unquestionably have been s ii fiorm as well as in effect. The result of the mIost careful and attentive considleration bestowedl u)ponl this clause is tliat if it does not enlarge, it can not b)e constriued to restrain tile powers iof (Congress, or to imipair tile right of tile legislature to exercise its b)est jldgmlelit ill the selection of mieasures to carry into execution tlie cnstitutional I)owers of the (;overnIielit. If no (-theer motive for its insertion can l)e su-ggestedl, a sufficielit one is found in the dIesire to remove all donlts respecting the right to legislate on that vast Imass of iicidlental powers wliich imust be invlvelll ill tile Constitution, if that inlstrumient l)e lno)t a splendid lauble. W\e adm( it, as all must adiiit, that tlie powers of tlhe (;overnment are limiitedl, and tliat its limits are not to )e transcendled. But we think tlie sound construction of the Constitution nmust allow to the National Legislature that discretion, with respect to tile mneans by whicl the powers it confers are to be carried( into execution, which will enablle that body to performi the high duties assigned to it in thle manner most beneficial to the people. Iet the end be legitimllate, let it be within the scope of the Constitution, alnl all means which are appropriate, which are plainly adapted to that endl, which are not prohibitedl, but consist with the letter and spirit of the Constitution, are constitutional. 74 In Prigg i. Pennsylvania (16t Peters. 539) Justice Story. in delivering the opinion of the court, said (p. 610): It wIill, indeed, probably be found when we look to the character of tle Constitution itself, the objects which it seeks to attain, the power which it confers, the lduties which it enjoins, and tlhe rights w-lichl it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and ol)pinions, that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand(, many modifications in its actual application to particular clauses. And perhaps tlhe safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, witli all the lights and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. The case of Prigg R. Pennsylvania (16 Pet., p. 539), frolm which the above quotation is made, was one in which the court sustained the institution of slavery. This directs attention to a most interesting epoch in our history. The Constitution ordained as follows (art. 4, sec. 2): No person held to service or labor in one State, undler the laws tliereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged fronl such service or labor, l)ut shall be delivered up on claim of the party to whom such service or labor may be due. It has always been conceded that this provision of the Constitution did not operate expjop)iio vgo're. Legislation was required to rende: it effective. Among the objects designated by the Constitution for which Congress could legislate this is not included. (Sec. 8, art. 1.) Nevertheless, the slaveholding States demanded and secured the passage of the fugitive slave act, approved February 12, 1793. (1 U. S. Stat., 3)02.) The Federal courts sustained this legislation, and the opponents of slavery went to work to secure a Congress and an Executive who would exercise the established and conceded power. so as to render this provision of the Constitution nugatory instead of effective. At the same time the question arose of the power of Congress to legislate regarding slavery in the Territories, and the two controversies continued simlultaneously, the latter resulting in the Missouri compromise, a measure equally repugnant to both contestants. Finally it appeared that the opponents of slavery were on the verge of accomplishing their purpose, and had secured the privilege of exercising this power. Thereupon the slaveholding States appealed to the arbitrament of arms, with the result that the institution over which the controversies were waged was destroyed and the powers of Congress to legislate in regard thereto extended so as to displace the authority theretofore exercised by the sovereign States. (Thirteenth amendment to the Constitution.) The importance of considering this portion of our history arises from the fact that the civil war resulted from the efforts to control a 75 power of Congress implied froml a provision of the Constitution restricting the opteration of State laws on the individual ownership of a certain species of property and the power given to "miake all needful rules and regulations respecting the territory and other property lbelongoing to the United States." The first territory over which Congress acquired jurisdiction outside of the boundaries of the thirteen original States was what is known as the Northwest Territory. The title to the land constituting this section of our country was then claimed by several of the original States, and such claim was a serious obstacle to the creation of the Confederation of States. Maryland positively refused to ratify the Articles of Confederation until tlese lands were ceded to the Federal Government. (A similar controversy as to other lands arose at the time of the adoption of our Constitution, or, to speak accurately, the original controversy continued down to 18(02, when Georgia surrendered its claims.) But "The Northwest" becameie the common 1)roperty, the public territory, of the United States in 17803. In 1783, it being evident that the General Government would eventutllv become the owner of "''The Northwest," Congress appointed a committee to report a 1plan for connecting said Territory witl the Confederation and providing a temporary government for the inhabitants. Thomas *Jefferson was chairmanl of that committee, and on the day the cession from Virginia was accepted he reported a plan for the governmlent of said Territory, which, aftelr leing su)jected to important modifications, was adopted on April 23, 1784. The plan adopted was known as,Jefferson's ordinance,j" or the 'Ordinance of 1784." The plan prloved unsatisfactory, and Congress proceeded to legislate anew on the subject. Between May 1. 1786, and July 9, 1787, three ordinances for the government of the Northwest Tlerritory were reported to Congiess. (May 10, 1786; September 19, 1786), and April 26, 1787.) Finally, on July 13, 1787, the ordinance of 1787 was adopted. The convention which formulated our Constitution convened on May 25, 1787, pursuant to a resolution of Congress passed February 21, 1787, and finished its labors September 17, 1787. Therefore Congress was considering the ordinance of 1787 at the very time the convention was deliberating over the Constitution. The importance of considering the ordinance of 1787 in this investigation lies in the fact that the statesmen of that period did not accept the doctrine that the guaranties enjoyed by the inhabitants of the States were possessed by the inhabitants of the Northwest Territory, neither by virtue of the Articles of Confederation nor by the fact that they had theretofore been within the jurisdiction of one of the States. The accepted doctrine was that such guaranties and rights must be conferred by Congress. Hence the ordinance contained six "articles of compact between the original States and the people and States in the said Territory." 76 The first provided that no peaceable person should " ever be molested on acount of his mode of worship or religious sentiments." The second guaranteed to the inhabitants "the benefits of the writ of ahabeas corpl).s, trial by jury, proportionate representation in the legislature, bail (except for capital offenses), moderate fines and pullishments, and the preservation of liberty and property." Trhe article concluded with the declaration '"that no law ought ever to be imade or have force in the said territory that shall, in any manner whatever, interfere with or affect private contrlacts or engatgements. 7)o fide and without fraud, previously formed." T'he third article declared 'that schools an(d means of education should forever be encoulraged, an(l good faith should )be observed towvard the Indians." The fourth decla:red ''that the territory and States formed therein should forever remain a part of the confederacy, sublject to the Articles of Confederation and the authority of Congress und(er them." The fifth provided for the formation il the territory of not less than three nor more than five States, to be admitted " into the Congress of the United States on an c(qual footing with the original States in all respects whatever, and to be at liberty to form a permanent constitution and State government, repulblican in fornm, and in conformity with the Articles of Confederation." The sixth prohibited slavery in the territory, but permitted the catpture and return of fugitive slaves from any one of the original States. (Rev. Stats., 187S, pp. 15 and 16.) The reasons for these "'articles of compact" and the purpose of entering into them is plainly stated by Congress in sections 13 and 14 of the ordinance, as follows: SEc. 13 And for exteining the fundamental principles of civil and religious liberty, wllich form the basis whereon these republics, their laws anld constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory; to provide, also, for tlhe establishment of States an(d permanent governnent therein, and for their admission to a share in the Federal councils on an equal footing with the original States at as early periods as nmay be consistent with the general interest. SEc. 14. It is hereby ordained and( declared, by the authority aforesaid, that the following articles shall be considered as articles of compact between tlhe original States and tile people and States in the said territory, and forever remain unalterable, unless by common consent. (Rev. Stats., p. 15.) Evidently Congress did not consider the territory and inhabitants privileged and (onditioned by the Articles of Confederation nor entitled to statehood with its attendant benefits as (an inherent right. On September 17, 1787, the proposed Constitution of the United States, as agreed upon by the convention, was signed by all the members present except Gerry, of Massachusetts, and Malson and Randolph, of Virginia. The president of the convention transmitted the draft to Congress. On September 28, 1787, Congress directed the Constitution so framed to "be transmitted to the several legislatures in order 77 to be stiblfittedl to a convention of delegates chosen in each State by the, people thereof, etc. rThe date -fixed JN1w the convention for coinmiencing the operations of government under the new Constitution wvas AMarch. 4. 1789, and on that date the Constitution had been ratified byx eleven of the States and became operative. The sulseqilent r-atificationls weTre, North Carolina, Niovembiler 21,I'(. 1789 Rhode Island. Mlay 29,17189; Vermiont, (January 10. 1789P. During this period the Constitution had been exhaustively examnined and discuissed in fourteen -States (including Vermiont) and throughout the nation. It was not acquiesced in by conminlon consent nor accepted as b-eing) possessed of the sacred1 clhairacter nowN conceded it. Alnost every one, of its provisions wats fiercelv assailed, and its supporters were put; to theiir utmnost ende~avor in its defense. Reference is made to this po~rtion of Our histor-y to direct attention to the fact that in 1803 the public mind of the ent~ire nation w'Nas faimiliar with the pro'(visions of ouir Constitution, imblued with its lphrposes and spirit, land wvas competent to determine the extent, of its intended operation. -in 1803 the U-nited States acquJ~ire(d thme pr-ovince Of Lo)uisiana. the treaty of cession contaiiied the stipulation: The inhal itants,, of the cede(l. territory shall ieCiiworporatted in the Uiiuoi Of the Uit(a StedoeR, and adllaittedl as s0 in as lPossilble, Iaccorling, to thle. prineciplesq of the F~ederal Coiistittition, to thle enjoymenit u)f all thie igtadlvantage(s, -,and i iniunities of citizens of the United States; and1 ill the m~eantime they shall be mainitained and Protected inl thec free emijoyvmnent. uf their liherty, prolperty, and time rehigiun they lprofess. (Article l3, Treaty withi 1'rancc, 180:3.) As soon as the trelaty- ceding- the country wtas ratified, Congress authorized the P~residlent to take possession of and occupy the territory ceded, and, for the palrposes of maintaining) a grovernment, therein, provided that the miliitary, ciiNl, and judicial powers exercised by the officers of the existing) government were to l)e Veste(1 ill 'such Perisons as the President should appoint. (Act approved October 31. 1803, 2 U. S. Stats., 24,5.) The military, civil, and judicial powers exerisdbthofiesf the existing government were those (createdi by the Spanish law, which had b~een.continued in force by the French. The only change m~ade by) Congress in this act wa-s t~o substitute President Jefferson for time King of Spain and to declare time purposes of said government to be for maiIfinftaining- and p)rotecting the inhabitants in the free enjoymient of their libertys, property, and religion. As already stated, miany of the l'aws continued in force byv this act were inimical to the Constitution of the United States, and the rights which Congress declared should he imiaintained are those guaranteed by the Constitution'. If Congress had accepted the doctrine that the Constitution was in force in the ceded territory, the President would not have been clothed with the powers of the King of Spain, nor would Congress have provided for the, protection of the rights by legislative enactments. 78 In discussing this bill in Congress, Mr. Rodney, of I)elaware, the Administration leader in the House, explained the intent of his party and the doctrine of the bill, as follows: It shows that Congress have a power in the territories which they can not exercise in the States, an( that the limitations of power found in the Constitution are applicable to States and not to Territories. (Annals of Congress, 1803-1804, p. 514; see also, remarks of John Randolph, Id.) The Administration party selected three of their members of Congress (Rodney, Randolph, and Nicholson) to defend the Louisiana purchase treaty in the debate on the bill to carry it into effect. The treaty gave to the port of New Orleans a decided preference over the ports of the United States. This was urged as an objection to the treaty and the assertion made that such preference was unconstitutional..In reply to this objection Mr. Nicholson, speaking for the Administration, said: The territory was purchased by the United States in their confederate capacity, and may be disposed of by them at their pleasure. It is in the nature of a colony whose commerce may be regulated without any reference to the Constitution. (Annals of Cong., 1803-4, p. 471.) That President Jefferson did not consider the territory and the inhabitants privileged and bound by the Constitution has already been referred to in this discussion. On March 2(), 1804, Congress passed another act providing for the government of this territory. (See 2 Stat., 283, 287.) By this act the country ceded by France was divided into two parts, and all north of the thirty-third parallel of north latitude was formed into a district, to be known as the District of Louisiana. Its government was to be administered by the governor, secretary, and judges of the Indiana Territory, whose respective powers were extended over the district. This practically amounted to attaching the district to the Territory of Indiana for judicial and administrative purposes, but thle governor and judges were authorized to oakcl, all laIr.r that might be conducive to good government in the new district, and it was specified that this included the power to establish inferior courts and prescribe their jurisdiction and duties. Certainly this does not indicate that Congress entertained the view that the inhabitants of said territory possessed an inherent right of self-government, or had secured the right by operation of the Constitution. The act contained further provisions that the laws so made should be consistent with the Constitution and the laws of the United States; that they should not interfere with the free exercise of religion, and that trial by jury should always be allowed. Here again is evidence that Congress did not consider the Constitution in force in said territory. Said act further provided that all of the territory south of the thirtythird parallel was organized as the Territory of Orleans. The execu 79 tive power of this Territory was vested in a governor and a secretary. The legislative poeirs were vested in a governor and 'a council of thirteen. In both the Tcrritory of Orleans and the I)istrict of Louisianat the lawms were to be reported to Congress, and if disapproved were to he of no force. It is to }be noted that by this act fuill legislative powers in 1)oth Territories were given to officers in the choosing of lwhom the people had no voice. 'Ihe acts of Congress regarding the estal)lishlment of governments in the "Northwest Territory" and the ''Louisi.ana Pulrchase" a1re examined at length, for the reason that said legislation has beenl the basis of all subsequent legislation ~by Congiess repgarding the establishment of government in organized Territories of the United States. The governments in the District of Louisiana and the Territory of Orleans were established after the adopltion of the Constitution. Tha-t the acts of Congress relating thereto contain mnany provisions which are not in harmony with the Constitution of the United States caln nlot be denied, but the Supreme Court has repeatedly sutstained said 'aCts. (Choteau ',. Eckhart, 2 How., pp. 344. 373; Permoli?. AIunicipalitv, 3 H-ow., pp. 5x8, 60:9; Clinton,. Engle}breeht, 13 Wall., pp. 484-442.) An investigation of the negotiations whereby the Louisianat ptiircha~se was effected will show that the l)l1'pose of the tlransaction wnas to seclure possession of the AMississippi River an(l make it a fre(e hig'hway for the transportation of the products of this country, n(ld secure saLi( products unobstructed passage to the markets of The world as then existing. While the negotiation was pending President Jlefferson wrote to Mr. Livingston, our llinister at Paris, saiying to hilll: There is one spot on the globe, one single sp)ot, the possessor, of wh\ich is our natural and habitual enenly. That is New Orleans, through which the pro(luce of three-eiglhths of our territo-ry must pass to nmarket, anld frolll its fertility it \-ill ere long yield more than one-half of our produce, andl contain more thlan half of oir inhabitants. And he further said: That if France insisted( upon holding New Orleans her positionll there wv-as so menacilg to the welfare of the Unlited States, then l ilng allmmost Nwholly east of tlme Alleghanvy Aountains, that it woull compel a treaty, offensive and defensive, bletveen the l'nited States and G;reat Britaiin. Even a cur11sory examlination of these negotiations demonstrates that the great object sought to be obtained,by- the purchase of Louisiana was to secure industrial and comlmercial benefits therefrom b)v unimpeded passage to -the world's markets. It was water, not land, that Jefferson souglht to secure. T''he acquisition of territory was a minor consideration. To bring the pr)oducts of the great West into contact with the markets of the world was the prirnal object. Water routes were the only means of convevance known in those days. Railroads 80 were unknown. The products of the West mlust reach the mlarkets of the world via. the mouth of the MIississilpi or not at all. That the products of the West would ever be conveyed over the Alleghaln Mountains to the tide waters of the Atlantic was not then considered possible. The mouth of the \Ilississippi at that tille bore thle samet relation to the markets of the world, as then existing, as the Philippines bear to-day to the trade of the Orient. In creating' legislation which sliall have effect in territory newly acq(uired Iby tlie United States, Congress is required to bear in mind the distinction between the territory itself and the inhabitants. (1ertain things appertain to the territory alo1ne, certain things to the inhallitants, and others to I)oth comibined. Iiscussion has already been had of the proposition that the sovereigonty and jurisdiction of the United States nlla attach to territory without extending the territorial boundaries of the nation to include such territory; andt that such territory, so long as it relllained outside of the territorial boundaries of the t'uited States, was not bound and privileged by the Constitutio(n. It is likewise true that territory 1lla b}e ulnder the sovereignty and jurislictioln of the n'iiited States alld vet nlot subiect to the laws of the intlited States enlacte(d before sai(d territory was acquired or wiithout reference to said tl1rritory. Statute(s possess no innate power of explansion. The geogl'raphical limlits of the statutes of the United States are the nationall )ou(l.ldaries at the time of the elnactmllet, ulless otherwise provided by the act itself. ID)uring its national history the Ut ited States has acquired more than 3,250,000( squarl e miles of territory on the continent of North America, outside of the boundaries of the oriiinal States. Congress has enacted more' thain one hundred special acts for the purpose of extending over this vast domain the Constitution a(nd laws of the United States, ', not lc(lly/;apj)lic 7le, and Alaska still reimin.iis to be dealt with. The Constitution land Federal laws have not been made operative therein, excepting the laws relating to customs, commerce, and navigation. (U. S. Rev. Stats., sec. 1!54.) It is unorganized territory governed by and legislated for by special acts of Congress, enacted as circumstances required and conditions justified. It could not candidly be contended that all territory considered merely as land has an innate, inherent right to the privileges guaranteed by the Constitution or the spirit of our institutions to the territory constituting the United States. For instance, if an American voyager were to discover an uninhabited island which was rich in mineral resources, contained large deposits of guano and phosphates, streams teeming with fish, extensive forests of valuable woods, fruits, and nuts, animals with valuable furs and skins, coral, oysters, and pearls in abundance, and should take possession thereof in the name of 81 the UTnited States, would such Amiericani citizen be permitted to land these natural )products of the island in the United States w-ithout other restriction than is imposed on the coasting' trade between different parts of the Uniited States? Such is not the accepted doctrine. (See G;uano Islands, title 72, Rev. Stats.. 1878, p. 1(I080.) The action of the discoverer does not benefit the island, except in tlhis, that it taffords an op)portunity to the iloliticfa1l branch of tile G(ovelllllen t of the United States to attlach the sovereignty, dlominion and jurisdiction of the U'nited( States to the territory, and thereafter confer upon it such privileges as to the political }bratlnchl seem just and proper. When the rights of the United States have tlheir inception in conquest antl arc ma:intaine(c as; such, the result is the sLrame as from discovery. But if the rights of the territory so s(aclquireid are nlade the sui)ject of a stipulation in the treaty of peace termlinating the war in which the conquest vwas made, or ill nly! treaty, the Ullited States becomes bound and the territory to that extent ben(efited by, the terms of the national compact. But the rights of the territory are inlchloate- aln(l are derived fro'm thle tre'aty. 'le! alre guaranteed }y' the nation's honor, not by thhe C(ostitution. The territoli' itself cnn not insist upon the fulfillmeint of the colllpact. The undcertakino is with thle previous sovereign. The timie and iaierl of its pe(rform-:tll(ce is to e letermlllined by the United States. The territory secured b}y the con(tuest of Mexico is an instance in point. The 'United States based its title to Upper California anld New MIexico on con(luest, lut in orlder to effect, a peace bonllld itself,}- treaty stiplulationis that the territory so acquired should be incorporated into the Union of the tnited States. (!) Stat., 930.) If the purpo(se of this treaty stipulation was to secture the eventual adlmission of thle conlqulest ias a State, the obligation lhas 1been ill p'art disclharged by the admission of Califolrnia all is vet existinll its to New Mexico has been made inl orgLanizel Terrlitor. and nowm seeks admission as ta State: but the (lllaims presecnted )by the ''Territo(lry are folunded on the f:act that its pl:optlattion is sutifcient land of sic('h chliaracter, and its internal develolpmellt a:dvanccd to st(lch degree, that the timle lhas arrived for it to receive tIle privilege1s age('cd ti)on iii the treaty with its forlllmer sovereignl. It appeals to the dis(crTetion of C(olmress, not to the fixed lrinciples or l.nvl'rying l)rovisions of the Collstitution. Whatever incipient right to statehood exists in favor of Neiw Mexico com11es froni the treaty of 1848, and not fromn the Constitution. It is t.rue that in expressing his views on the II)red Scott case Chief Justice Taney annotunced the doctrine that the United States could acquire territory for no other purpose thlln to convert into States of the Union, and that all territory acquired by the United States was 1394-03. 6 82 charged with a trust requiring ultimate admission as a State. The language used by Chief Justice Taney is as follows: There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way except by the admission of new States. That power is plainly given, and if a new State is admitted it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the State, and the citizens of the State and the Federal Government. But no power is given to acquire a territory to be held and governe(d permanently in that character. * * * AVe do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government it has been held to authorize the acquisition of territory, not fit for adlnission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as tle propriety of admitting a new State is conmlitted to thie sound discretion of Congress the power to acquire territory for that I)urpose, to b)e held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. (Dred Scott 1. Sandford, 19 How., 393-446, 447.) The doctrine thus announced by Chief Justice Taney, that the United States could acquire territory only for the purpose of creating States, was accepted by the court as then constituted. Whether the language quoted is niere d('cthum, as is often asserted, or was the vital point in that case, as is now contended, is not essential in this investigation for the following reason: That doctrine rests upon the proposition that the authority of the United States to acquire territory is derived solely from the power to create and adlmit new States, which power is conferred upon Congress by section 3 of Article IV of the Constitution. The I)red Scott case is the only case in which this proposition has ever been accepted. What is popularly supposed to have led to its acceptance in that case is matter of history, not of law. It is sufficient for the purposes of this investigation to call attention to the fact that Chief Justice Taney's major premise was in direct contravention of the doctrines established by the prior decisions of the court and by the course of Congressional action, and has been ignored and completely overthrown by the subsequent decisions of the court, to say nothing of the tremendous results of the civil war. The right of the United States to acquire territory was at first held to arise from the power conferred upon Congress by the Constitution1. To carry on war. (Clause 11, sec. 8, Art. I.) And the power conferred upon the President and Senate2. To make treaties. (Clause 2, sec. 2, Art. II.) Finally, the court, the Congress, and the nation recognized that the United States is a sovereign nation, and that the right to acquire territory is an inherent attribute of sovereignty, and thereupon this right 83 of the United States was declared to rest upon the abiding foundation3. The sovereignty of the United States. (Americanl Ins. Co.. Canter, 1 Peters, 511, 541; Mormon Church,i. United States, 136 U. S., 42; United States, Lyon et al.,,r. IHuckabee, 16 Wall., 414. 434: Jones c. United States, 137 U. S., 202. 212.) That the doctrine announced by Chief Julstice Taney in the I)red Scott case was in direct contravention of the understanding and course inaugurated by the founders of our (Governmlentl and thereafter followed by Congress is I1manifest fro1m an examinattio(n of the national compact with the Northwest Territory (1787), the Louisiana P'urchase treaty (1803), the treaity witll Spain re1gal rdingl Florid:a (189!), the trCteaty with Mexico regarding Upper Califorlnia a:nl New Mexico (1848), tnd Alaska (1867). One of the articles of thle national conmpl)at with thie Nortlhwest Territory (17S7) clontained tlhe following pledge: There shall be forned in tlle said Territory not less than three nor Imore tlhan five States. '* * idl * nd- * su(ch State shall le a(ldlitted( * * * ol (a e(lual footing with original States, i all resp)ects whatever; andl shall lbe at lilbert to forim a permanent constitution and State government. (See Rev. Stat. V. S., p. 16, article 5. ) Why was this compact entered into if the Tlerritorl wals Ilready charged with a trust in favor of statehood, and the [United States without authority to acqulire it for any other ip)11:)(se In the treaty for the cession of Louiisiana the United States oblligated itself that — The inhabitants of thle cleded territory shall )e incorporated into tie Uln ion of the IUnited States and a(lmnittedl as soo as p)(ssilile, accordlilg to the lprinciples of tile Federal Constitution, to tlle enjoymnent of all the rights, alvantages a and imnlnunities of the citizens of tle Uiiited States. (Article 3, US IS. S tat., 202.) In the treaty with Spain whereby was confilrned the title of the United States to the Floridas, tlhe 'nited States obligated itself thatThe inhabitants of the Territories * * * shall )be incorloratedl in the Union of the United States as soon as it may 1)e consistent xwith the princilles of the Federal Constitution, and allmitted to the enjoyment of all the privileges, rights, andl immunities of the citizens of the United States. (Article 6, 8 Stat., 256.) In the treaty with Mexico, whereby Mexico relinquished its rights to Upper California and New MAexico, the United States obligated itself thatThe Mexicans who, in the Territories aforesaid, shall not preserve the character of citizens of the Mexican Republic conformal)ly with what is stimulated in the preceding article, shall be incorporated in the IUnion of the United States and to be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution. (Article 9, 9 Stat., 930.) 84 In the tr-eaty wvith Russia whereby the Uniited States acquired title, to Alaska the, United States obligated itself thatThe inhabitants of the cedledl territory ***should be admitted to the enjoy - mnent of all the rights, adlvantages, and imumiunities of citizens of the United States. (Article 8", 15 Stat., 542. ) For- wh~at purpose and to what end wer-e these tre'aty StilpulatioIns cre'ated1 if by the act of acqvisitimi the territory became charoged with a trutst in favor of statehood and] the United States required by its (Constitution to execute said trust The doctrine announced in the Di-ed Scott decision was not original with Chief Justice Taney. it was originated by John C. Calhoun anid announced by- himi during the discussion of thie Wilnvot proviso in 184 7 Reorarding its origin Thomas 11. Beniton says: A new (logmia wvas invented to tit then case-that of the transmigiration of the Constituti on (the slavery part of it) into the Territories, overriding and overruling all the antisl-averv lawvs which it found theire-, awl planting the institution there. under its own wing, and mnaintaining it. beyondl the p~owVr of eradlicat~ion either lbv C ongress or thie p)eople of the, Territory. -Before this dogma was, proclaime~l efforts were made to get the Constitution exten(ledl to thiese Territories by act of Clongress. Failinioin those attempts,, the dliffhculty was leaped over by boldly assumning ''that the Constitution wvent of itself ''-that is to s~ay, thie slavery part. of it. Ill this- exigency 'Mi. Calhoun cane oat withi his new and supreme logriia of the transnugratory function of them Constituition inl the ipiso facto, andl the in~stantaneous translportatio.n of itself in its slavery attributes, into all acqui redl Territ one's. Andl as t~o the (loctrine itself, IBeit~on says: II1istorv c-an ioot class higher than as the vagary of a diseased imagination this iinjputedl sel f-acti no an(l 'gel f-extenlsi on of the Clonstituition. The Constitution (loes nothing of itself-not. evenl in the States, for which it. was mnade. Elvery p~art of it requires a law to lout, it into operation. No poart of it can reach a Territory unless implartedl to it byatofCnress. (Benton's Thirty Years in the Senate, vol. 2, p.713, 714.) The conluision seems irriesistible. that the sovereign people of the United States, in acquiring territory by the exercise of the inherent right of soverejonty, sectire slai(l terrjitorv free afndi clear of incumbrances other- thani it sees fit to impose upon itself by- tre'aty stipulation or- other- agreemniet entered into witlh dir-ect refer-ence to said territory. A different, conclusion ca,,n only be reachied b-y conceding' that the sovereignl people of the U7nited States, act intin) a sovereign capacity, ar~e not possessed of the powveis wh~ichl constitute sovereigtnty. The sov-ereign people of the Uniited States, awhile acting' as ac political unlit, possess every attribute of the most Ipote~ntial sovereignty. (Cohens r. Vi-rginia, (-') Wheat., 264; AMeCuilloch?r. Mlaryland, 4 Wheat.. 405; Lane Co. q-. Or-egon, 7 Wall., 7-1, 763; Legal Tender Cases, 1,L2 Wall... 588); Thie Chinese Exclusion Case. '130 U'. 5., 58.1, (304; In rc Neagle, 13.5 U. 5., 1, 84-88 (dissenting opinion of Fuller, Ch. J., and Lamar, J.). 85 While the court have declared( these polwers, so exercised, to be of })road( extent and of exclusive character, they have not olllitted to refer to certain limitations thereto and restri(tioIls therleo. IIn Mormlonl C1hurc1h?. United States (130 I'. S.. 42) the coutrt say: The lrincipal (luestions raised( are, first, as to thie pwer of Congresst t, repealt tlhe charter (of tile Church of Jesu (lChrist of Latter-I )ay Saints, ali(l, sea'co) Vl, as to thle power o-f ('ongress and tlie courllts to seize thle Iroperty of sai(l cirl,,ration alnl to lholdl the sailme for tile lpirises mentionedll ill tlie (leree. The ipo\wer of Congress,ovr tlle Territorisc of tlle Unitedl States is general ili(l plenlary, arising fromll anl iInci(dental t tllie righlit to acquire tle territory itself andll fr ml tlie power given ll y tle Co()stitultionl t(o make all needful rules and regulatimons reslpectillg tilte territory or,tler o ropl)erty )(eloltging t) tlie IUitcd States. It would b1) abl)surd to hlol(l tlat tle Uiiite(l States lias )power to a(icuire territory alnd o, power to govern it when a(cuired(. Tlie lpower to ac(lire territory othler tlha tlhe territory inorthwest of the ()Olio River (which belollged t tolle United( States at tle adloption,of the Constitution) is lderived froiln thle treaty-mlakinrg power and thle power to declare anli(l carry on war. The inci(ileits,of these pIoers arel tllose (,f natioiial sove'reignty, alnd belong to all indelpendent groxernlents. Tle ower to mlake acq lisitions of territory by c(nlqluest, by treaty, atlll by cessio(i iio a inslcidenlt o(f nati oal soverlignlty. The Territory of Louisiana, \wlen ac(qllir ed fromI Franlce, andl tlle Territories west of tlhe Ro(ky lMoulitails, 11(when 1a(luir(ed( from,1 Mexi(co, }(ecamel tle ablsollute prol)erty and (olillaiil of tlle United States, s}ubject to suchl ( ollit(ions as the 0;Yerllte t, ini its (lilomatic negotiations, ladl seen tit to acclpt relatilig t( tlle riglts ()f tlie pe ple til('e iihabliting these Territories. Ilavin riglitfully acluire(l said Territories, thil Ulitel States (o()vernmlet was tle only onel wlli(ll c(u111l imllose laws u11)o) tlheil, andi its s() vereigltyv over tlheiil wa (011s ollete. No State (f tlie Unilio lia( aI1ly sluchl riglt ()f so\vereigilty o:ver tlhemt; (no other 'country or goovernilellnt la(1 a11y such(' rig ilt. T'i eso p)ro)( ositionsll are le so el elle tary, an(l so necessarily fi oll( from tile c((onitio(ll (of t lilagsr arising il ul0o tlIe aclquisitioln of new territory tliat they nee (l 11l arguillent to sulpl)port tlhiell. They are self-evi(lent. After thus declalrilng tilc l)potwes of Co(lgrrss tlhe coutrt furtlher say (p. 44): D loubtless Congress ill legislating for tlie Territories woNl()1 lc sull ject to tll(o)se fun(lamiental limiiitations in favor of lpersoinal rights 1whic(h aire forilmltte'd ill tle ('onstitutionll an(t its allenld(lnents; l)ut these lilmitationls would exist rather 1by inferelnce an(l tle gelieral s irit of tlhe Constitution, fromii which Conglress dlerives all its lowers, than 1)v any express ani(1 (lirect aplllicatiol of its p)ro(visions. The ca(se of Thompson,. Utaih \\ws decide(d tby tll cotll t a 11lo0W (colstituted, aLnd therein the coturt, (luoting from Mormon Cllurchl v. United States, agtain say (170 U. S., 345, 349)): D)oubtless Congress in legislating for tlhe Territories would be subject to( those fundamental limiiitations in favor of personal righlts which are forln1dtltc(l in tile Collstitutiol a1nd its amendlmlents; Ibut these limiiitations woulll exist rather by inference and the general spirit of tile Constitution, from which Congress derives all its powers, than by any express and direct application of its provisions. Attention is directed to the use by the court of the expression "forimtlated( by the Constitution," rather than created, conferred, or guaranteed by the Constitution, showing that the court had reference to "fundamental limitations ' on legislative powers arising from the 86 primal, inherent rights of iren-rights which do not arise from.constitutionial provisions and antedate all governments, such as life, liberty, acquisition of pro~)Perty, formation of a famnily ard begetting offspring, and othler rights of like character. Such rights are not created or conferred byv gov-ernmlients. They are protected, maintamned, and promoted byN all just gov-ernments, and their exercise regulated and controlled, and in proper indivridual instances taken away; but it is riot the r~/ift, it is the relqplattonl which originates with govern1m1ent.. When we undertake to consider such rights in the abstract, we rise labove constitutions and statutory enactments and enter the reltdal. of ethics, and inustt deal with the lawvs of civilization and the spirit engendered by nineteen Christian centuries. All the powVers of the (G-overnm,111ent of the U nited States are limited and controlled by these blio'he I' laws for the reason that the sovreigon i. c.. the people of the United States, recognize their' controlling power, and if an officer exercises his discretion in violation thereof, the sovereign displaces hini and sM'eures an incumbent whose discretion coincides therewith. Not ev-en the Constittition is exelnlmt. For' inlstance, tile Constitution plainly conifeis upon Congress the rIcighlt to 'grant letters of inar'(lue aind reprisal." (Art. 1, sec. 8.) Had a citizen of thie United Staites, (uring' the late, waftr with Spain, applied to Conogress for such letters, aisser-ting' his c(laiinr as o)ne of right guaranteedl byr the Constitution, wouild the lettors have been issued? If not, w-hy? lrhe interrogratory is bx'st aninsweNred by the language of Chief u11stice Mar'slhall when he. sa.tys: Ve adllit, as all rust admit, that tlie powers of the Government. are limiteil, and that its limits are not to be transcended. But we think tihe Sounlnl construction of the Constitution llmut allow to the 'National Legislature that (liscretionl, w1ith respect to the mnicans y which the powcrs it confers are to Ibe carried into execution, wh-iichl will enable that body to performi the high duilties asicnied to it in the manner most lineeicial to the peolde. Let the end,bhe legitimate, let it. be within the scope of the Constitution, and all mimeans wh-icih are approp-riaite, w-hicih are plainly adapted to that enl, which are not prohiibited, hut consist with the letter and spirit of the Constitutiom), are constitutional. In investigratintr the status of the inhabitants of territory newly acquir'ed by the IUnited States, title to which is based upon conquest, it is necessary to bear' iii mind the differ'ence between political pr'ivileges and personal i'ights. J'olitical privileges, inn the sense in which the term is used at this point of this discussion, ar'e created and confer'red by the political laws, i. e., the laws fixing arid regulating the relations between the citizen ard the sovereign. The personal rights to be considered are those inherent to man, such as 'life, liberty, and the pursuit of happiness." The most sacred of these is life. Let that right be taken, for an example. Sacm'ed as is the might to life, it is suspended in the presence of war. Conquest results fr'oni invasion, invasion from war. Time was 87 -when war illallt exterllination, invasion death to tile inhabitants, and cotliquest slavelry. Civilized nations no longer put the inh abitants of invaded territory to the sword, although at one time it vwas done by Divine commanla(l. Why was the practice abandoned? Wa.s it because the American colonies issued the Declaration of Independence? Was it in compliance with the requiremlents of the Constitution of the United States? Or is thle restraint enforced by the la-aws of civilization and the spirit of the age? Are not the Declaration of Independenlce, dtl the Co)nstitution of the [UnTited States as powerless to.enforce this restraint as the onmadlllltll of loses is to remlove it? In dealinig with the ilh'labitants of newly acquired territory, it is the slirit of the Constitution, the charactler of ou-rl institutions, tand the laws of hunianitv and civilizattion that impose restraints; in the absence of trealty stipultatiols in regar( tllhereto. Th'le Supreme Court of the UYnited States say: Tlhe title by conquest is acqulired awnl Illaintained 1by force. The conqueror proscriles its limlits. Hluimanity, hoiwever, actilg on publlic opinion, lhas esta)blished, as a gcneral rule, thliat thle colflucredl shall not c wantaitonly oppressed, and that their cn('lition shall renmain as eligil)le as is c'olplatible \ithl the olijects of thle conll(ucst. IMost iusually they are ilcorporatel 1with the vict(orious nation an1 ibeconlle subljects 0or citizens of the goverminent w-itll w\liclh they are connected. Tlie neNw and old( Incllbers of the society mingle withl eachl otlher; thie distinction lbet\\-cell them is gra(lually lost, and they mnake one people. Wlcere this incorporation is l)racticablle, humllality demlands, and a wise policy requires, thlat tlhe rights of the con(luered to 1,property should remain unilipaired; that, tilh lle\ subjects should be governed as eq luitably as thle old, andi that confid(ence in thleir slcurity slhouldl gradually- lanish tlie paiiful sense of bein(g separated froli tlheir ancient cmnnections and unitedl by force to strangers. When the conquest is complete, and the conquered inllabitants can be blended with tile conquerors, or safely governed as a distinct 1)eople, p)ublic opinion, which not even the conqueror can disregard, impolses these restraints upon lilm; an( lie can not neglect them. without injury to lhis famle and hazard to his power. (Johnson v. McIntosh, 8 Wheat., 54.3, 589.) In Brown v. United States (S Cranch, 11()), the court say (122, 123): Respecting the power of government no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate, the piroperty of the enemy wherever found is conceded. The mnitigations of this rigid rule, \which the humane anl 1wise policy of modern times has introduced( into plractice, will inore or less affect the exercise of this right but can not implair the right itself. That remains undimiinislhed, and( when the sovereign authority shlall choose to bring it into operation the judicial department must give effect to its will. Substantially the same thing was said in Young r. United States (9,7 U. S., 3(, 60). The language of the court in that case was: All property within any enemy territory is in law enemy property, just as all persons in the same territory are enemies. A neutral owning property within the enemy's lines holds it as enemy property, subject to the laws of war, and if it is hostile property subject to capture. 88 Bui-t ini another case, that of Mr.Alexander Cotton (2 WN all., 404, 419). the Supreme Court say: This rule, as to p~roperty oin lam!, has receivedl very important qualifications from usag~e, fr(on the reasonings of eiiiightened publicists, and fromt j mid icial. decisionis. See also Brigrgs v. United States (t43 U. S., 3463. 356), wherein the court quote Wvith approv~al the decisions above referred to. It wNill be notice(1 that ill mionie of these cases, does the. court supnoest that the limiitations onl this sovereigni power are created bv the Constitution of the Uniated States. It is with, reference to these, higher laws and most potent spirit th-at the Sulpremne Court say: Theli(persom-il amil civil rights 0f the inhabitants of the Territories are securedl to theme, as to other (Citizens, by the principles ofcntttoa liberty which r'estraini all the agencies of governinent. (Murphyv r. Ranisav, 114 JT*,. 159i 44-45. And( tll() (to (quote a third time): IDonbtles~s Coigrces,,in legislating for thle Territories-, would he subject to those, fundamental limitations, in favor of personal rights which. arc, formulated in thle (onstitution an(1d its anmendmnents; bumt these limitations woubl( exist rather 1 v hinfrence andl the gemeral spirit of the Constitution, from which Congress (lerives all its powers. than. hvm any cx prcss anl (direct appllicationi of its pirovisions. ( Mormon Church?e. United S,~tates, 1_6. S., 1, 44; Thompson in. Utah, 1.70 U. 8., 343,:349.) Ala ska is anexsino- instance of unorgnedtrioylen'i o the, United States and goverined dlirectly a1nd entirely by Congressional I eo'i 5 Iatio u. Regardling the, powers, of Congress inl legislating, for Alaska, IDawSon, J., saidi: Possess~-ing the loxver to erect a, Territoria~l governmenit for \.laska, the-1 could coqfirr,i]pon it odinc po/Uers., Jm'oinicdn (00! ("recititiin, ts tlwoq (Inli'eeinl mow! sitint((lnl to thme vecesqities~ o-f theiti( inhinwitos~i. it wvas umionestionablv wvithini the constitutionali power of Congress to withhold from thel inhabitants of Alaska the powrm to b p idlte amil ma(ke laos. In the absence, then, of any lawvmaking pme iii the Territori' to N Ii it -source nimus.4 the people lo)ok for thle laws by which they aet egvreTi usincl admit of but one answNer. Congress, is thle ooly lawvmiaking power for- Alaska. IUnitedl States r. -Nelson, 29 Fed. R'ep., pp. 202, 205, 20(i. Ini Endlemnan o. United St~ates. spe~alking of the pwvers of Conlgres-s in legislating for Alaska. the court say (8(1 Fed. Rep., 45(i): Congress; has full legislative powver over thle Territories, unrestricted by the linmitatiomis of the Constitutiomn. (Syllabusi. In the bodY of the opinion the court said (P. 459): The United States, havinig rightfully acqulired the territory, atid beinig thle only Government which can impose laws upon them-r, has- the entire (lominion andl sovereignItv, national andl municipal, Fedleral andl State. ***it uiay legislate inl ac.m;inlance with the special needs of each locality, and vary its regulations-, to mneet the coniditions and circumstamices of the people. Trhis case wvas decided by the United States circuit court of appeals, ninth circuit, February 28, 1898. 89 Speakiin with reference to tlhe (governlment of or'!/,ali.'l Territories adl their itnhi},itiants, the Supreme Court say: Their people (ld not cOllstitltte a sovereign power. - Ill political aultlority exercised therein is (d'-ic'd fro(:m tie (Ger)eral (fo'roc)t. (Snow r*. United States, 18 Wall.,:117,:)20.) It will )e noticed that tlle source of the designated authorlity is declare(d )y the court to be the * e(neral (Goverllnmet," nott the Constitution. This decision is a clear recognlition of the sovereilgn power vested in the (Generatl (Governlillent, and which is exercisedl inllepledelt of the Constitution. If this is the rule as to orglanized Territories, )eolpled las they have beenl l)v, illnlligratiol from the )older co()ll ities of the naItio(), 1)' oIur own citizens, who at honme possessed the rights of citizenship 1ad pa111rticipated ill tho sovereiginty, many of whlom enteired the Trrl'litory to avail themselves of special privileges )(estowed upo11) them il recog'nitioti of their valor il defense of the nation, is a Imore adv:ntageous rule to )e Lapplied to unorganized territory- lIargely- pIoled)l by ta alien race, ignorant of our laws, customlls, a t(l inlstittitions, ntmiiable to (listilngish the differlence between the (onstitutioni of the I['lit(ed States and (a map of the country, antd as incalpable, at l)reselt. of properly applvinl its coimplex provisions and diverse agenicies as they wou)tll b)e those of tile switch hoalrd of (a union railway station) It therefoloe seems incoitrovertiIle that the unorganized territory of the United States is not boulld( a(ld lbe(efiteld by the LCoistitution and laws of the tnlited States until Congress has made appropriate prvision tlherefor. And if Co1gress shall 1b al))lpropriate action extend the territorial bloundaries of the t'Uited States to inlclude the islands acquired by tlhe nation (dllring the late war with Spain, andl thereafter contitnue said isla(nds ill the cold(ition of unlorgl' aized terrlitory governed by the sovereign lo1wex's of the nation, tlhe exercise of saidl sovereign powers will not }be dilrecteld, limited, or controlled by the expressed provisions of the Constitution. All the functions of government being within the legislative dis(cretion, Congress may exercise them diiretly or through organized agencies for local rule. 'All the discretion which belongs to the legislative power is vested in Congress" (114 U. S., 44), and thlerefore the power of Co(ngress over the Territories is general and plenary." (13 8 U. S. 42.) 11I. Congress having determined to change unorganized territory belonging to thte United States into organized territory alnd invest it with the powers of government known as Territorial, is Congress thereupon and thereafter under obligation to provide laws and a government for it which shall fulfill all the guarantees of political independence 9i) and rights of citizenship which are provided for by the Constitution of the United States for citizens domiciled within the territorial boundaries of the United States? In other words, does the Constitution, ee jlrop)'rio 'iqlore, extend over said territory? Throughout our entire history Congress has.adhered to the doctrine that the great powers land appurtenant rights created and conferred by the Constitution were not inherent to all people, but were to be bestowed upon them, the bestowal to be mlade upon those only who possessed the ability and determination to ploperly exercise them. Hence the requirements of the naturalization laws. Congress and the Executive are to judge of the fitness of the applicants for such bestowal and the tests by which they are to be tried. Hence the authority to enact the Chinese, contract labor, and pauper exclusion acts. Hence the right to fix the time when organized Territories shall be admitted into the Union as States and the people thereof acquire the sovereign rights of a State. Acting upon the theory that the Constitution (lid not, exrl'op'('io r'i(/o'e, extend over the territolry of the United States outside of the boundaries of the several States, Congress has given force anl effect to the Constitution and laws of the United States in the organized Territories by legislative enactment. The atct to establish a Territorial government for New Mexico (1850) contained the following provision: SEC. 17.,1A1l be it ftrthertle ccted, That the Constitution and all laws of the United States wNhich are not locally inapplicalle, shall havee the samte force and effect within said Territory of New Mexico as elsewhere within the United States. (9 (Gen. Stats. of U.S., (c'hap. 49, p. 452.) Similar legislation has been had in regard to other organized Territories, as follows: Utah, vol. 9, Stat. L., p. 458, chap. 51, sec. 17; Colorado, vol. 12, p. 17(3, chap. 59, sec. 16; Dakota, vol. 12, p. 244, chap. 86, sec. 16; Idaho, vol. 12, p. 813, chap. 117, sec. 13; Nlontana, vol. 13, p. 91, chap. i95, sec. 13; Wyoming, vol. 15, p. 183, chap. 235, sec. 16; District of Columnbia, vol. 16, p. 426, chap. 62, sec. 34. Finally in the "Act to revise and consolidate the statutes of the United States," approved June 22, 1874, Congress made general provision as follows: The Constitution and all laws of the United States which are not locally ilnapplicable shall have the same force and effect within all the o'gftl(ized Territories, and in every Territory 7hereafter organized as elsewhere in the United States. (Revised Statutes of the United States, sec. 1891.) The expression "organized Territories " and "every Territory hereafter organized," appearing in this statute, refers to the political subdivisions known as Territories, in which Territorial governments have been or may be organized. (See title 23, chaps. 2 and 3, Rev. Stats.) It can not be interpreted to mean unorganized territory considered as an expanse of country, nor can " every Territory hereafter organ ized" F 91 be held to mean every foot of land hereafter (acquiwi?~d. (See title 23, chap. 3, p. 342, Rev. Stats., U. S.) When tile various new States were al(dmitted into the Union their territory and inhablitants derived the benefits and were subjected to the obligations of the Constitution by virtue of the act of adlllission, which invariably contains the provision that said State i. ' Ladmitted into the Union onl an equtl footing with the original States ii. all respects whatever."' The opinion of Chief Justice Mar.shall in Loughborough,'. Blake (5 Wheat., 317) is often cited as sistaining the doctrile tlhat the Constitution is in force e,' J)P'l) b'/o v/yore in the Territories. The nalle of Marshlall is one to conjure with: and when lie speaks regarding tie Constitution it behooves a person desiring:anl understanding of that instrlument " to write his savinlgs in a )ook."' The case of Lougillolromglh. Bhtlke was an actionl of trespalss, to try the right of Congress to imlpose a dirlect tax on the District of C(olu1mtnbial. Clhief,tJustice M:l'arslhall stated the issue tas follows: This case l)resents to the collsideration of the court a single lquestion. It is this: Has Congress a right to iinpose a direct tax on tlle District of Colullbia? In answering this questioll affili'lnatively, Chief Justice M:irshall said (pp. 318-310): The eighth section of the first article gives to Congress the "''power to lay alnd collect taxes, duties, imnosts, and eXcises," for the purl)oses thereinafter lnentione(l. This grant is general, withlout liimitation as to pllace. It consequently exten(ls to all places o-er which the (,,verlllnellt exten(ls. If tiis (culd1 le (lollbtel, the (doubt is removed by the sul)seluent \\-or(s \hich mo(lify tle grallt. These words are, " But all duties, imlpots, and excises shall l)e uniforml throughl)ut the lnlittcd States." It will not be contended that the mod(liication of the lo\\-er exten(ds to l)laces to which the power itself does not extend. The power, then, to) lay andl collect duties, ilnposts, and excises may le exerisedl, and must )e exer(ise( tllrougrl}OUt the Unite(l States. Does this terin designate the;whole or any particular portion of the American enmpire? Certainly this question c(an adlit of but one answer. It is the name given to our (;reat Republic, whicll is comnl)osed of States and( Territories. The District of Columbia, or tile territory west of the MIissouri, is not less within the United States than AMaryland or Pennsylvania; ain(l is not less necessary, on the principles of our Constittution, that uniformllity in th}e imposition of implosts, dluties, and excises shoultl Ibe observed in the one than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously coextensive with the power to lay and( collect duties, imposts, and excises, and since the latter extends throughout the United States, it follows that the power to impoyose (lirect taxes also extends throughout the United States. What was it extended "to all places over which the Government extends?" Clearly it was " the power to impose taxes." The power of taxation is a sovereign right of Government. One of those rights which MaIrshall was eager to establish belonged to the General or Federal Government. V)92 That the Chief Justice did not intend to declare the Constitution to be in force in the District of Colunlmbia appears clearly when the facts upon w\hich the action was founded are known. The lawr assailed by the taxpayers was a special act imposing a direct tax upon the District (/ilo,. That is, the act did not iml)ose a tax 1)0on the counltry ait large and simply require the D)istrict to pay a. share proportionate with that of the several States. The taxpayers directed attention to the followin' pr)ovisions of the Constitution: The Congress shall have power to lay and collect taxes. (Sec. s, clause 1, Art. I.) Representatives and direct taxes shlall be apl)ortioned among the several States which may lbe included within this Union, acc(rd(inl( to their respective numbers. (Sec. 2, clause 8:, Art. I.) No) c(alitation or other dlirect tax shall l}e laicl, lnless in i)roportion to the census or enumeration teeri einbefore directed to lbe taken. (Sec. 9), clause 4, Art. I.) The protesting' property owners of the District contended that Congress was not authorized to impose a direct tax excel)t in those parts of the coutntry afforded Representatives in Con1'ress and embraced in the language ' the several States which nmay l)e icluded withiin this Union;"? and if this contention was not sustained, and the power of Congress to impose a1 direct tax extended beyond the States of the Union, the Constitutti)o required that tle amount to be raised l,- such tax "'be apportionled amongl tlhe several States" and not confined to one, to wit, the District of Columlbia. Regardingl this contention (Chief Justice Marshall said (pp. 322-323): We think a satisfactory answer to tthis argument mlay be drawn from a fair comparative view of tIle different clauses of tlie Constitution which have been recited. Tlhat the general grant of power to lay atnd collect taxes is mlade in terims which comprelhend tle I)istrict andl Territories as -ell as thle State is, we think, incontrovertible. Tlhe subsequent clauses are intenidedl to regulate tile exercise of this powIer, not to witthdraw fromi it any portio:n of thle (o()munity. The words in which thlose clauses aire expressedt import tlhis intention. In thus regulating its exercise a rule is given in the secondl section of thle first article for its application to the respective Statcs. The rule declares how direct taxes upon the States shall be imposed. They shall be apportioned upon thle several States accor(ling to their numbers. If, tlen, a direct tax be laid at all, it must be laid onl every State, conformnably to the rule providled in the Constitution. (Conrell ss t as clearly no power to exemipt any State from its due sl}are of the burden. But this regulation is expressly confined to the States and creates no necessity for extending tle tax on the Iistrict or Territories. The words of tile ninth section do not in terms require that tle system of direct taxation, when resorted to, shall be extendedl to the Territories, as the wor(ls of the second section require that it shall be extenlded to all the States. They, therefore, may, without violence, be understood to give a rule when the Territories shall be taxed without imposing the necessity of taxing thelm. Loughborough,. Blake was decided in 1S20(). In 1S28 the American Ins. Co.?,. Canter (1 Pet., 511), was presented to the coturt, Chief Justice Marshall presiding. In the course of his argument of that cause, Mr. Daniel Webster, discussing the condition of Florida, then a Territory, said (p. 538): 93 What is Florida? It is not part of tle T'nited States. How can it l)e? hIow is it representel? I)o the laws of the United States reach Flori(la? Not llless by particular provisiolls. The Territory and all within it are to be governed by the (r,(liring p)o',cr, except where there are reservations lb treaty. IB tlle law of England, when possession is taken of territory, the Kingl, Jure, ( ronorth, has the power of legislation until Parliament sliall interfere. Congress has tlhe Jx. Coro(, l, ill this case, and Florida was to b1e governed( 1y Congress as slhe thougllt proper. What has Con-,gress done? She mighlit have do( e anythingl-seie ight have refused tile trial >by jury, and refused a legislature. She has given a legislature to be exercised at her will. Mr. Whipple, who was associated with Mr. Webster in the case, said (p. 533): Much argumnent has been usedl in order to show that the Constitution and laws of the United States are, per.s, in force in Florida, andl that the inhabitants are citizens of the United States. IIHo' tile Constitution becamle of force inl Florida Iias not been shown. \as it by the act of cession? Is there atinv priciple in tile l,,l o!f a,/tions which, upon tlie act of (ession or conquest, gives to tile cedled or conquered country a riglit to participate in the privileges of the Constitution of the parent country'? Tlle sages of nations from tile period of (;recian colonizationl to tlle resent moment are precisely the reverse. Such a riglit never was asserted. The Constitution was establislhed by the people of tile United States.for the IUnited States. It provides for tlhe future admission of Territories into tlme Unio, andt expressly confers uponl Congress the power of governing themi ((s 7}tritories unItil they are admitted as States. If the Constitution is in force in Flori(la, why is it not represente(l in Congress? Wlmy was it necessary to pass an act of Congrress extending severall of thle laws of the United States to Florida(? W\hy d li Congress desiglate larticular laws, suchl as tlle crimes act, tle slave trale, an(l revenue acts, and introduce them as laws into llorida? Why1 enuTmerate lparticular righrts secured to tlhe people of tlhe United States, if the inhabitants of F'orinda were entitled to thllem upon tile act of cession? This case vwas heard in the circuit court by 1Mr. Justice Johnson, of the Suplre( e Court. I-e delivered his opinion in writing. Therein he said (see note. 1 Pet., 517): It b)ecomes ildislpensal)le to the solution of these difficulties that we should conceive a just idea of tile relation in which Florida stands to tile United States, and give a correct construction to tlhe seconld section of tile act of Congress, of Maya tile 26th. 1824, respecting tile Territorial govern mlcl t of Florida. Correct views on these two subjects will dispose of all the 1)oints tlat have been considered in argument. And, first, it is obvious that there is a material distinctioin between the territory now under considerationi atd tliat whlich is acquired from tl(e aborigines (whletlier by purchase or conquest), o'itihii tile acknowledged limits of tlle United States, as also that wlich is ac(luired by tle establishlnent of a disputed line. As to 1oth these there can be no question that tlhe sovereignty of the State or Territory within which it lies, and of tlhe United States, immnediatelv attach, producing a complete subjection to all tlhe laws and institutions of tlhe two governments, local and general, unless modifie(d 1b treaty. The question now to be considered relates to territories previously subject to the acknowledged jurisdiction of another sovereign; such as was Florida to tie Crown of Spain. And on this subject we have the imost explicit lroof tlat thle understanding of our public functionaries is that the Government and laws of the United States (do not extend to such territory by the mere act of cession. For, in the act of Congress of 5March 30, 1822, section 9(, we have an enumeration of the acts of Congress, 94 which are to be held in force in the territory; and, in the tenth section, an enumeration in the nature of a bill of rights, of privileges, and immunities which could not be denied to the inhabitants of the territory, if they came under the Constitution by the mere act of cession. As, however, the opinion of our public functionaries is not conclusive, we will review the provisions of the Constitution on this subject. At the time the Constitution was formed the limits of the territory over which it was to operate were generally defined and recognized. These limits consisted, in part, of organized States, and, in part, of Territories, the absolute property and dependencies of the United States. These States, this Territory,,and future States to be admitted into the Union are the sole objects of the Constitution. There is no express provision whatever made in the Cons.titution for the acquisition or government of territories beyond those limits. The right therefore of acquiring territory is altogether incidental to the treatymaking power, and perhaps to the power of admitting new States into the Union; and the government of sucih acquisitions is of course left to the legislative power of the Union, as far as that power is uncontrolled by treaty. By the latter we acquire either positively or sub },(odo, and by the former (lispose of acquisitions so made; and in case of such acquisitions I see nothing in which the power acquired over the ceded territories can vary from the power acquired under the law of nations by any other government over acquired or ceded territory. The United States Supreme Court affirmed the decision of Mr. Justice Johnson. The Court, speaking by Chief Justice Marshall, say (1 Pet., 541-542): The course which the argument has taken will require that, in deciding this question, the court should take into view the relation in which Florida stands to the United States. The Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently that Government possesses the power of acquiring territory, either by conquest or by treaty. The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed; either on the terms stipulated in the treaty of cession or on such as its new master shall impose. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law which may be denominated political is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the State. On the 2d of February, 1819, Spain ceded Florida to the United States. The sixth article of the treaty of cession contains the following provisions: "The inhabitants of the territories which his Catholic Majesty ceded to the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution; and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States." This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the Government till Florida shall beconie a State. 11 the meantime Florida continues to be a Territory of the United States; governed by virtue of that clause in the Constitution which empowers Congress "to make all needful rules and regulations respecting the territory or other prol)erty belonging to the Lnite(l States." Perhaps the power of governing a Territory blelonging to the United States which has not, by becoming a State, acquiredl the Ireans of self-government, mlay result necessarily from the facts that it is nlot witlhill the jurisdlition of any l)articular State, and is within the power aind jurisdiction of tlle li-ite(l States. The right to govern imay be the inevital)le con(lsequellce of the riglit to acquire territ:ory. Whichever imay be the source wheiice tlhe 1) )\'wer is (lrivc(l tile possessio of it is muiquestione(l. In executionl of it Conress, il 1822, l)asse(l ''In act for tle estallishlnellt of a Territorial governnmlelt ill Florila;" 'aiitd on1 tle -3(1( of I\r(cli, 182:, lasse(l another act to amend thle act of 182'2. E'n(ler this act tlhe Territorial legislatlure eiiacted the law nlow under (onsideratioln. The vital (lquestion in AIllricln Inlsurance Companyli?. Canter was the pOwV'(r of Congress to autliorize the Territorial legisltature to confer jurisdiction of cases in aidnira-ilty upon Territorial courts. It was insisted that the Constitutionl gave exclutsive julisdictioll of such lmatters to the Federal courts (Art. III, sec. 2); that the Constitution wtas In force in Florida. atld therefore the acts of the Territorlial leg'islatulre giving jurisdiction in ad(llliralty Cases to the Territorial courts was in violation of the Constitution. It was against this propIositioh, that 5JMr. Webste, r amnl d Mr. Whipple contended, and in such conltention wNere sustained 1)v the Suprenie Court. It was this proposition which was lenlied b)y Mr.,Justi(ce,Johnson, sitting as circuit justice, and the (lenial affirled 1)y the Supreme Court. As to this proposition, the court say (p. 546): It has been contended that b)y the (Constitutio)nl thle ju(li('ial I)ow'r of the nliiited States extentds to all cases of a(liiiraltv an(l ima-ritinIe juris(liction;l at1 tlhat tile whole of this judicial power nutst b)e vested "in (onle S1upirenle Court, an(l ill such inferior courts as Congress shall, froml tie toi t tine, ordain antd esta}blis." l ence, it has been argued that Congress can not vest a(lmiralty jurisdiction in courts c(reated by the Territorial legislature. We have only to pursue thlis subject one ste) further to lpereiv-e that this provision of the Constitution (toes not apl)l)ly to it. The next senten(ce declares tlhat "the judges of both thle Supreme and inferior courts shall holl their offices during go(od behavior." The judges of the superio(r courts of Florida hlol( their offices for four years. These courts, then, -are not constitutional courts in which the judicial I)ower conferred by the Constitttion oil tlle General Government can be deposite(l. They are incapable of receivinlg it. Thley are legislative courts, create(l in virtue of the general right of sovereignty w}hich exists in the (i;overnmnent, or in virtue of that clause which enables Congress to make all needlful rules and regulations respecting the territory belonging to the UInited States. The juri.sdiction ith whli(ch they are invested is not a part of that jud(icial power which is (lefined( in the thir(l article of the Constitution, but is conferred by Congress, in the execution of those general powers whi(ch that })o(ly possesses over the Territories of the lnitedl States. Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the third article of the Constitution, the same limitation 96 does not extend to the Territories. In legislating for them Congress exercises the combined powers of the General and of a State government. We think, then, that the act of tlhe Territorial legislature erecting the court by whose decree the cargo of tlie l'oiot (t l't,'e was soldl, is not " inconsistent with the laws and (Ionstitution of the lUnite(l States," and( is valid. (Conse(uently, thle sale made ill imrsuance of it change(l tile plroperty, and tile decree of tile circuit court awarding restitution of the propIerty to tlhe claimiant ought to b)e atfirnied with costs. Twenty years later i)aniel \Welster was again called upon to refute the doctrine against which he had successfully contended in this case. The forutl was the Senate of the United States, and the occasion was his famlous debate with John C. Calhoun. It was by reason of showing the fallacy of this dogma that lie gained the name ' Expounder of the ConstitutionI, and was adjudged worthy to rank with Chief Justice Marshall himself. The (llestion of extending the Constitution and laws of the United States to ['pper California and New Mexico upon the acquisition of that territory froml Mexico gave rise to a heated debate in Congress. That debate is described b)y Benton, tlhen a Senator, in chapter 182, volume 2, page 72!, of his falllous work, Thirty Years in the United States Senate, as follows: Time treaty of peace with Mexico had been ratifiedl in the session of 1847-48, and all the ce1ed territory becanme subject to our (Government and needing the immediate establishment of Territorial governments; blut sulch were thle distractions of tlhe slavery question that no such governments could b)e formedl nor any law of tile United States extended to these newly acq uired anid orphan o(lolminions. Congress sat for six months after the treaty had been ratified making vain efforts to plrovide government for the new territories, and adjourning withoout accoimplishing thle work. Another session had commenced and was coming to a close with the samte fruitless result. Bills had been inltroduced, but they only gave rise to heated discussion. In the last lays of the session the civil and diplomatic app)ro)riation hill-the one which provides annually for thle support of thle (.Government, and without thle passage of whiclh the Government would stop-came lupl fromi tlie I louse to tlhe Senate. It ha(l receivedl its (onsideration in the Senate, and was read(l to be returned to the House, when MIr. Walker, of Wisconsin, ilmoved to attach to it, under the nanme of amnendment, a section providing a temo)orary government for the ceded territories and extending an enumnerate(d list of acts of Congress to tlhenl. It was an unparliamentary and diso(rderly proposition, tlhe proplosed anmendmrent being incongruous to tlIe mlatter of the app)ropriation bill and in llain violation of tlle oblvious principle wlhich forbade extraneous matter, andl (cspecially tllat which was vehemently contested from going into a bill uplon tle passage of which thle existence of the (Governmnent dependedl. The proposition iet no favor; it woulld ha\ e died out if the inover had not yielded to a Southern solicitation to insert tlhe extension of the Constitution into his amendment, so as to extend thlat fundamental law to those for whomn it was never made, and whlere it was inapplicalhle andl impracticable. The novelty and strangeness of thle proposition called up Mr. Webster, wlho said: " It is of importance tlmat we should seek to have clear ideas and correct notions of the question which thlis amnendment of the menmber fromm Wisconsin has presented to us, and esl)ecially that we should seek to get sommie conception of what is meant by the proposition, in a law ' to extend the Constitution of the United States to the Territories.' Why, sir, the thing is utterly impossible. All the legislation in the world, in this general fornm, could not accompllishl it. There is no cause for the operation of 97 the legislative power in s1uch a mannler as that. The Consltitution-what is it? We extendedt the (onstitution of tle United States by law to territory! What is the Constitution of the United States? Is not its very first principle that all within its influence and comlprehension shall be represented in the legislature which it establishes, with not only a right of debate and a right to vote iln loth Houses of Congress, but a right to partake in the choice of the President and Vice-President? Anrd can we by law extend these rights, or any of themii, to a Territory of the United States? Everybody will see that it is altogether implracticable. It colnies to this, then, that the Constitution is to be extended as far as practicable. IBut how far tlat is is to be decided by the President of the U'nited States, and therefore he is to have absolute and despotic plower. Ile is the judge of what is suitable and wllat is unsuitable, and what he thinks suitable is suitable and what lie thinks unsuitable is unsuitable. lie is oiu)is in hloc, and what is this but to say, in general terms, that the Presi(dent of the -Ulited States shall govern this Territory as he sees fit till Congress makes further provision. "Now, if the gentleman will be kind enough to tell nie what principle of the ('onstitution he supposes suitable-what discriiminlation he can draw 1between suitable and unsuitable which he proposes to follow, I shall be instructted(. Let mIe say tlat in this general sense there is no such thinig as extending the Constitution. The Constitution is extended over tle United States, and over nothling else. It canl not )e extended over anything except over the o1l( States and the new States that shall conice in hereafter, when they do (ome in. There is a want of accuracy of ideas in this respect that is quite remarkable amlong eminent gentlemen, and especially professional and judicial gentlenmen. It seems to be taken for granted tllat tlhe right of trial by jury, the habeas corpus, an(d every principle designed to lprotect personal libertv is extended by force of thle Constitution itself over every new Territory. That proposition can not be mainitained at all. Ilow (lo you arrive at it by any reasonimng or deduction? It can only be arrived at 1)v tlIe loosest of all )possil)le constructions. It is said that this imust be so, else the right of thle habeas corpi)us would he lost. Und(oubtedly these rights must be conferre(l 1by law before they can b1e enjoyefl in a Territory." It was Inot Mr. Walker, of Wisconsill, the imover of the proposition, tllhat replied to \Ir. Webster; it was thle lprompliter of tthe mleasure that did it, and inl a way to show iimnmeliately that this extension, of the ('omnstitution to Territories was nothing but a new scheme for the extension of ~slavery. D)enyinmg the power of Congress to legislate upon slavery in Territories-finding slavery actually exclu(led from the ceded Territories and (ldesirous to get it tllere-MIr. Calhounl, the real author of Mr. Walker's amlendment, took the new comnceptionl of carrying thle Constitution iitto thllem, which, arriving there, and recognizing slavery, and leing tile suplreme law of thme land, it woul(l override thle antislavery laws of thle Territory and plaint thie institution of slavery under its agis and ahlove the reachu( of any Territorial law or law of Colngress to abolishl it. Ile thlerefore (caml t the defense of his (iwn propositioi, and thus replie(l to IMr. Webster: "I rise, not to detain tlhe Senate to any consi(leral)le extent, but to make a few remarks upon thle proposition first a(lvanced by thle Senator from New Jersey, fully indorse(l by the Senator fromin New Ilaiiapshire, alnd l)artly indo(rsed 1) the Senator from Massachusetts, that the Constitution of the JUnite(l States does inot extend to tlhe Territories. That is the i)oimnt. I ant very happy, sir, to lhear this proposition thlus asserted, for it will have the effect of narrowing very greatly the cointroversy between the North and the South as it regardls the slavery question in connection with the Territories. It is an implied ad(lmission on tlle part of those gentlemen that if tIhe Conistitution (does extend to the Territories the South will b)e protected in the enjoyment of its )roperty-that it will be under the shield of the Constitution. You can put no other interpretation up)On the proposition which the gentlemen have mnade 1394-03 -7 98 than th:at the Constitution do:es not extend to the Territories. Then the simple question is, Does the Constitution extend to the Territories, or does it not extend to them?l Why, the Constitution interprets itself. It pronounces itself to be the supreme law of the landl." a WAhen Mr. Webster heard this,sllogistic assertion, tlat the Constitution being the supreme law of the land, and thle Territories being a part of the land, crgo( the Constitution being extended to them w-ould be their supreme law; when he heard this he called out from his seat: "'What land'?'' Mr. Calhoun replied, saying: "The land; the Territories of the United States are a part of the land. It is the supreme law, not wiithin the limits of tile States of this Ulnion Imerely, but wherever our flag waves-wherever our authority goes, tle Constittition in part goes, not all its provisions certainly, but all its suitable provisions. Why, can we have any authority beyolnd tile Constitution' I put the question solemnly to gentlemen; if the Constitution does not go there, how are we to have any authority whatever? Is not Congress the creature of the Constitution; does it not hold its existence upon the tenure of the continuance of the Constitution; and would it not be annihilated upon the destruction of tllat instrument, and the consequent dissolution of this confederacy? A\nd shall we, the creature of the Constitution, pretend that we have any authority beyond the reach of the Constitution? Sir, we are told, a few days since, that the courts of the United States had madle a decision that the Constitution did not extend to the Territories without an act of Congress. I confess that I was incredulous, and am still incredulous that any tribunal, pretending to have a knowledge of our system of government, as the courts of the United States ought to have, could have pronounced such a monstrous judgment. I ama inclined to think that it is an error which has been unjustly attributed to them; but if they have made such a decision as that, I for one say that it ought not and never can be respected. The Territories belong to us; they are ours; that is to say, they are the property of the thirty States of the Union; and we, as the representatives of those thirty States, have the right to exercise all that authority and jurisdiction which ownership carries with it." Mr. Webster replied with showing that the Constitution was made for the States, not Territories; that no part of it went to a Territory unless specifically extended to it by act of Congress; that the Territories from first to last were governed as Congress chose to govern them, independently of the Constitution and often contrary to it, as in denying them representatives in Congress, a vote for President and VicePresident, the protection of the Supremle Court; that Congress was constantly doing things in the Territories without constitutional objection (as making mere local roads and biridges) which could not be attempted in a State. He argued: "The Constitution, as the gentleman contends, extends over the Territories. How does it get there? I am surprised to hear a gentleman so distinguished as a strict constructionist affirming that the Constitution of the United States extends to the Territories without showing us any clause in the Constitution in any way leading to that result, and to hear the gentleman maintaining that position without showing us any way in which such a result could be inferred increases my surprise. One idea further upon this branch of the subject. The Constitution of the United States extending over the Territories, and no other law existing there! Why, I beg to know how any government could proceed, without any other authority existing there than such as is created by the Constitution of the United States? Does the Constitution of the United States settle titles to land? Does it regulate the rights of property? Does it fix the relations of parent and child, guardian and ward? The Constitution of the United States establishes what the gentleman calls a confederation for certain great purposes, leaving all the great mass of laws which is to govern society to derive their existence from State enactments. That is the just view of the state of things under "In 1821, while Secretary of War during Monroe's Administration, Calhoun entertained contrary views. (See post p. 140.) 99t the Constitu-tion. And a State or Territory that has ni) lawN ibut. such as itdeie fromn the Constitution of the United States must be enitirely- Withouqt aiySta-te or, Territorial government. The honiorable Senator fromt `S (tlhCroia c iiversaimt xv-itli the su1)ject as he must be from his long (xperieniee in differenit braiiches of theO Governrnent, must know that the Co(ngress of the United States have established priniciplies in regarli to the Territories- that are utterly rep)ugniant to the Conistitution. ''Tie Constitution of the United States has providedl for theni an) indlepend~eiit juliciary; for the judge of every court of the, Uniitedl States holds his othice uponl thec tenure of good behavior. Will the gentlemian say that in anyv e murt establdishedl in the Territories the judge holdIs his office in that way x Ie 1 holds~ it fir a termi of vear-s and( is removable at Executive (discretion. IHow didI wxe governi Louisiania before it. was a State? Did the writ of /i((ltbe~i corpuis exist in L ouisiama luring- its Territorial existence'? Or the right to trial by jury? WVho (exer hearml (f trial by jury there before the law ereating the Territorial governmient inavxe the righit to trial by jury'? No one. And I dlo not believe that there is aniy new lriti11w to 1 e thronNN 111)411 time history of the proceedings of this (lovermniunt ini rela(tion to that ma-tter. WXheni new territory has been acquired it has always, 1beeni subject to the laws o)f Congi(-ress", to such laws as Congress thought properC to pas:s for its iimnmnedhiate governiiient, for its, government durinig its Territorial exis-tence, (luring thime preparatory siate iii which it, was to remain until it xwas ready to comle inito the Ulnioni as4 onle of the faiiuilv of States." All this was soun (lconstitutional laxw, o)r, rather, xwas veracious history, sliowhing that Congress governed as it lpleasedl in the Territories independently of the (ouistitution, anli often contrary to it, and co)nse(Iuently that the Colistituti ii (lidl iot extend to it. Mr. Webster then shmowed thie puierilitx of the i(lea that time C(onstitultioii xent over the Territories be(cause thex wx rc ''1(10(1 andl explosell the fallacy (If the suIpposition that the Constitution, ( x ( it exteuidell to a Territory, could1( operate there of itself and xvithout a laxw ot C on-ress miamle under it. T1is, fallacy xvas exp~osed1 by` shoxving that 'Mr.- Calhoun, in q1u, tilig, the Constitution as the supreme laxw of the land, had omitted the essemmtial xvo(rdIs xxhiclh xvere part. of the.4ame clause amii xwhich coulple xwith that supremac th laxvs of Conigress madle in purisuiamnce ot the Constitution. Thus: 'The honorahle Senator from South Carolina argues that the, Cons~titution (deelares itself to be the laxx of the land,7 and that therefore it. must. extendl over the Territories. 'The lanid,' I take it, means the land over xvhich the Constitution is establdished, or, in other xvordls, it means the States, unlitedl lid~er the, Constitution. lBnt (hoes miot tlIe gentleman see at once that the argument xwould prove a great (heal tool much? Thle Constitution no more says that the Constitution itself shall be the supreimie laxw If the land than it says that the laxxs of Congress shall be the suprene la\\v of thie land. It declares that the Constitution and the laws of Congress pas.sedl under it shall be,- the supreme law of the land.'' The question took a regular slavery turn, -Mr. Calhoun avoxwing his intent to be to carry slavery into the Territories under the wing of the Constitution, and op)enly treating as enemies to the South all that opposed it. Having taken the turn of a slaverv uetoit gave rise to all tie dissension (If which that subjectha beo eth lparent since the year 1835. This attempt, pus-hed to the verge of breaking 111) the Government in pursuit of a newly invente~l slavery dogma, was founded in errors too gross for misapprehension. In the first lplace, as fully shown by M1r. W~ebster, the Constitution was not made for Territo'ries, but for States. In the second place, it can not operate anywhere, not even in the States for wvhich it was mnade, without acts of Congress to enforce it. This is true of the Constitution in every p~articular. Every part of it is inoperative until Put into action by a statute of Cong-ress. The Constitution allows the President a salary; he can not touch a dollar (If it without an act of Congress. It allows the 100 re1CoV1ver of fugitive slaves; ymi (all iiot recover one without an amt of Congress. An(1 so of every clause it contains. The proposed extension o)f the Constitution to Territori", with a view to its transportation of sla-very along with it, was- then futile '111( nui'tory iiitil aii act of Concress should be passed tviazesvryudrit. S-o ftat U fteextension had l)een declared lby law, it would have answered 1W) p)trlmse except to widen the field of the slavery agitation, to establish a newv point if cont(ntiton, to give a new phase to the embittered contest, aiidi to alienate more anid iiire froii each other, the two halves of the Union. Buit the extension was iiot dleclared. Coigress (li(. not extend the Constitution to the Territories. Thie prnilposal was rejected in. both Hlouses; and iinmediately the crowning dlogina i.s imyent~e( that the (Constitution oToes of itself to the Territories without an act of Clongress,, and execuites itself, so far as slaverv- i-s concerned, not only without legislative aid, but in dlefiance of Congress andi the pieopile of the Territory. This isthe last slaverv creed of the Calhoun school and the one on which his (lisciples~ now staiid-andi not. with any, barren foot. T h ey apply the doctrine to existing Territories and make aciluisitiOms fromt Mexico(. for new appilications. It is impossible to considler such condluct as anvthin- else than as one of the (levices for ''forcing the ivole prith, thw iNOrth,'' which ML\r. Calhoun, in his confidlential letter to the mneiiilers of the -Alabantta legislature, awsto have been his p)olicy since 1835, andi which he avers lie would thenr have effected if the miembers fromt the slave States had stood by him. The "' irrelpres~-sible conflict regrding, slavery is ended. It is no longer(,] a Political issue. Tlherefore it is as proper as it is necessary to consider the (ffleets of that conflict upon the legislation and judlicial determnijations of the periodl in wvhich it was thme all-absorbing quc.Ation. Conempranoushistory is,- the light by \which laws and their judicial initerpretationls are to lie readi. H-istoricallv we know that the slaveholding p~opullationl of the United St'ates aund their sup~porters, relying upon the fact that, ordinarily emnigr-at ion. moves aldong- the lparallels of latitude, confidently oxpected that the' terr-itory acquired iw) the United States (luring the war with Miexico wouldl be occuipied by a people who believed inl slavery. Tile tion anrl of grold inl California changed the ordinary course of emncriatnaldinlundated Cal1ifornia. with. a, wNave of inmmigration coinrposedl of people f roim all lands and to whom slavery was a hateful institution. Theni commenetced time fierce stru(ggle to secure protectioni, in this Territory, for the. rights of the slaveholders by Congressional enactInemit. two scetese, iii wvhich are g-rajphically described by -Mr. Benton ill languge lready (quoted~. Baffled inl the attenipt, to secure the desired action by Congress at the. first4 "sessionl inl 184S. the sumpporters~ of the '" pecutliar institution" had recourse. to action by the Executive as a branch of the, 1)01itical (lepal1tinlent of this (Governmecnt. The laction had wvas takcni during the inter-im betwveenl the first and,second sessions of the Thirtieth Congrrelss. 'JaMes K. P~olk was Piresident; James Buchanan, Secretary of State: William L. Mlarc'., Se-cretary of WNIar; R. J. Walker, Secretary ofteTeSUry. Thse are great names in the history of politics and ]lmirisprudence inOr onry anid when. their action is cl L1'CO11onfirmed by,, the Suipremne Couirt. (if the U-nitedI States a prospective critic may well 101 patuse for consideration and deliberation as he adjusts his shaft. But it is well known that these mien were the leaders of a great amlly Of paltisans, strivilng to preserve the institution of huimnan slavery, which, from our early history, had been a prolific source of contenltion ald a lmenllace, even in that early day, to the establishinellt ald (coltinued e.xistence of our (o(vernllenlt. In 1848 it was the 'bltuning' (lustion,"' with regar(l to whichi political lines were (i dr.wn, 1an tlthe lieat enoenlldered was so iitellse as to kinlle the ftlllles of war. While tlese lmen were great, they were also liuman, 1 and coul()111 n1o 1()e re'sist the influences of their political elvironmllent than tlhey could alter tlhe existing climlltic olliditiols. 1'pen the failure of the Thirtieth Congress (184S-49) at its first session to act in tile mattetr of extell(ling the Colstitutionl anl laws otf tihe lutite(l States over Califorrnia., the Executive took tlhe initiative. Tlile trealty of pheae with Mexico, which als;o (lesignllated the bomll(ldavll lbetweei IMexi(o and the l Uiited States, was ratified Mlay -), 1S84S. ()tticial lnotice of the treaty was lnot rec ei\ve(l b) the (comllnllitder (of or11 for(ccs in Califorlnila ltil.iti iA st 7, 1848. '()n August 9), 1 S4S Colonel \aI:tsoll, tlheil in c)llllllm(l il Callifo(r-lia. 1)roclaieleied tlhe treat! an. l aitnoun(ledel that tlhe miiilitary g'()ove(r111(mlt thel( in ch1:rll'(le of tlhe civil a:'airs of tlle Territolry wou-l(l contilmue in rautho)lrit until othl(e 1provisi(onII wasl madt(l }tbut that tile tarliff for tile c(lle(,tioll of milittary (Itlties woul(l im lie(liatelv (.,easel, al:1(1 thalt the l'exvellue iaw\Vs atlt( taliifl of the llI ited(l States wou(ld ( e stllbstittlted( il its place,. al(l tlie (' I iaig'e was ma(le. Colo )Iel Mason repl )te(l hlis tactioll to tll(e alitlio ities at V'ashi in(wtonl t1d(l ] his actiol was (olitirlle(l by tlhem. Thie Thirtietli Cong' ress adjolrlll(ed iln A\tIgu'st, 1S4. In thle (l(.lsin'I (1ay, of that session ColrI'less passed two (acts froiml which it appea)lrs. }by iiievitable iiten(linmetit. that l)oth H louses of C(olgress asselite(l to tlhe (xtenlsion of thle b} l(ou) tlies of tie l ite(1 Statets to il(clt(le 1pper ('alifornia. The tirst of tliese was "Anl act mtiaki g' al)ppropiiationis for tlIe civil (and (li plornlti( expenses of tlhel (G:over ilnmet for thle yea itr 11(1 -i tng ' ":,/,' o/, [/ /' J,)//y.s,'. a(l)priovedl Ag tumst 12. 1 84S. Thi is act provided: lor tle exipenses (of rtunning anil markingt thle blondlllary line bletween tlie lI ited States ain l 5Mexico (andl paying tlhe salaries ol the ofi(crs (of t}le ('oComissin, ai s111 not (xcee(ling fifty thousand loll1ars. (!) Stat. L., chap. 1);, I'..'1.o ) The secondl act was "An act to establish certain post routes," applroved August 14, 1S4S. Section 3 of this act prlovided as follows: SE(. 3..ld be itfrther (e!acted(, That tle Postmaster-General lbe, and hle is herely, authorized to establish post-offices anl( alpploint deputy postmnasters at 9San DlieoZ, Monterey, and San Francisco, an(l sucl othilier places on tile ( last of thie Pacific, in California, within the territory of tlhe United States, and to make such teimp)rary arrangements for tlhe transportation of the mail in sail territory as the pu)blic interest may relquire; that all letters conveyed( to or fromn amv of thle above-mentioned places 102 on thle Pacific, from or to any place on the Atlantic coast, shall l)e chllarged with forty cents lostage; that all letters conveye(l fro llone to any otler of the said lplaces,m tie l'aciic sllall Ipay twelve and( a half cents pIostage; an(d the Postmlaster-General is authorized( to alpply any ImIOnlys receivedl on accoulnt of }postages aforesaid to tihe playmnents to hle nmade oni thle contract for the transpIortation of the mails in the l'acific Oceanl; and thle I'ostmlaster-Genlral is further authorizel to emplloy not exceeding two agents in making arrangements for tile establishment of plost-offices and( for the translissionl, receil)t, and conlvyance of letters in Oregon and California, at an annual co(nll)nsation not ex'ee(ling that of the principal clerks in the IPost-Office l)epartmlent. AppIroved Aug\ust 14, 1848. (9 Stat. L,., chap. 175, p. 320.) The position assumel d by PreYsident Polk and his Catbinet was tlhat by such legislation the stipulations of the agreement between the United States and Mfexico, as evidenced by the treaty, had been imade operative ill the United States and the boundaries of the United States extended to incluede the territory acquired by conquest confirmlled by treaLf-. See letter of instruction dated October 7, 184S, from James Buchanan to WBillianl V. Vorhies, Iagent of the Government of the United States in establishing p)ost routes and post-offices in California. (House Ex. Doc. No. 17, pp. 6-7, Thirty-first Conlgress, first session.) Tl'o this lltiuchl of the conclusion reached btv President Polk and his Cabllinet nlo exceptioll need b}e takemi. It serves to illustrate, hlowevel', the necessity for plarin lprovisions and specific utterallnces by Congress in lhegislating for the nel possessions of the United States. "Necessary intenlldment" is too flexib}le andl expansiive to form a l)rop)e test for the grave questions involved. ult P1resident P'olk arnd his Cabinet saw fit to go further. 1By letter of date Oc tober 9i?, 1848, William L. Marcy, as Secretary of War, instructed Colonel MIasol as follows: XBut the governllent de.facto can. of course exercise no powers iInc(,Msistent with the provisions of the Constitution of tile lUnited States, which is the supreme law of all the States and Territories of our Uni.on. For this reason no impl)ort duties cani be ]evied in California oil articles the growth, protluce, or manufacture of any State or Territory {of the iUnited States; and no suchl (lluties can b)e inllposedl in any part of the Ulnioni o the lproductions of California; nor can (luties be charged on such foreign productions as have already paid (luties in any part of the United States. At the sanme time R. J. Walker, as Secretary of the Treasury, issued the follovwing circular (see Ex. Doe. No. 1, second sess. Thirtieth Cong.): TREAsuRY DEPARTMENT, October 7, 1848. On thle 30th of May last, upon the exchange of ratifications of our treaty with Mexico, California l)ecaimie a pIart of the American Union, in consequence of which various questions have been presented b)y merchants and collectors for the decision of this Department. By the Constitution of the IUnited States is dec.lared that "All treaties ma(le, or which shall b)e nlade, under the authority of the United States shall be the supreme law of the land." By the treaty with Mexico California is annexed to this Republic, and the Constitution of the United States is extended over that territory, and is in full force throughout its lilits. Congress also, by several enactments subsequent to the ratification of the treaty, have (listinctly recognized California as a part of the Union, and have extended over it in several important particulars the laws of the United St atcs. 103 l ler thiese circuilmstances tihe fo:)llowing instructionsare issueid I)y tIiis l)elartn','nt: First. All articles of thle grwtlh, pro(lince, or llmanufacture of California shippe(l thlerefrom at any time since tlhe:30th of M\ay last are entitledl i) adlmission free of dlutv into all )ports of the United States. Second. All articles of the growth, proiduce, or manufacture tf the Unitedl States are entitled to a(ldmission free of duty into California, as are also all foreign goodls which are exemnpt from dluty 1y the laws of (Clngress, or on which goods the duties prescribe(d by those laws have been laid to any collector of the lnitedt States previous to their introduction into California. Third. Although the Constitution of the United States extends to California, and Congress has recognized it lby law as a part of the l Union and( legislated over it as such, yet it. is not brought by law withlin tlhe limits of an collection district, nor has Conigress authorized tie appt)ointiment of any officers to collect the revenue accruing on the import of foreign (duitial)le goods into that territory. Undler these circuimstalices, although this IDepartment may be unab)le to (collect the lduties accruing on importations from foreigli countries into California, yet if foreign (dutiable goodls should be intro(luced there anml shipped thence to any port or 1)lace of the lUnited States they w-ill be subljeet to) duty, as also to all the penalties prescril)e(l 1y law when such. importation is attempltedl without the payment of (duities. 1. J. WAAlK,'R SC'rretrql (of tie Trhca.ltOl. Thie authorities ini California )proceeded to act ii accordance with these instructions and (eforce(l iii that Territory thetariff and nalvigatioiI laws o)f the United States as4 then existinlg. Tleir ac('tion was sustaitned by the Supreme Court of the United States in Cross et al.,'. Harrison (t' How.. 164. 189-190. 1 97), decided in 185)3. The action of President Polk in this nmatter might have })een julstified b) y leasons seenlinigly incontestable, if based on the fact that the law which inmposed a tariff on foreign goods landed in the Territory was put in force by the military government while the United States was exercising the rights of a )belligerent; that subsequent changes in the schedules made by the (I.. t(clo government were changes in regulations for the enforcement of an existing law; that such changes lay within the discretion of the military authorities, and therefore the President, as comnmander in chief of the military forces and the head of the military government, might adopt the schedules, rules, and regulations of his home Government if his discretion so determined. But neither President Polk nor the court based the authority on such grounds. Both placed it on the avowal that the Territory was bound and privileged by the Constitution and laws of the United States, ex proprio viqoi'e, upon the acquisition becoming complete. Congress did not take this view of the matter, and at the second session of the Thirtieth Congires passed "An act to extend the revenue laws of the United States over the Territory and waters of Upper California, and to create a collection district therein," approved March 3, 1849 (9 Stat., chap. 112, p. 400). That the course pursued by Mr. 1Polk and his Cabinet, although sustained by the Supreme Court of the United States, was at variance 104 with tile ideas entertained by- the founders of the Republic plainly appears when coimpared with the action taken by the First Congress in the instances of North Carolina and Rhode Island. The P'resident iniformed Congress on the 28th of January, 1790), that Nolth Carolina hatd ratified the Constitution on November 21, 1S89; and, again, he informed Congress on the 1st day of June, 1!90, that Rhode Island had ratifie(l the Constitution on May 29I, 1 789. Prior to receivNing these notifications Congress lad enacted two revenue mleasures, to wit, "An act for hisaing duties on goods, wares, and merchandises illp)orted into thie United States,"' also. '"in act ilnposing duties on tonnage." Althou(rh )by such act of ratiticfatiOl )oth North Carolina and Rhode Isltnd b)ecanie incorporate(l in the Union of States, Collngress saw fit to pass a(ts extendingl tlle prlovisions of the previous revenue melasures ov-er the terrlitolry illullded inl North (Carolina and Rhode Island. (See 1 St-at., Ip..99; 12('.) ILoulisiana wals cede(l to the trnited States in 1803. The Territor y of Orleans was erectedl in a. i ortion thereof in 180)4, and in 181'2 was a(tlnitted. into the tlnion of States as the State of Louisiana. Ait the time of the cessiozn tle tariff law of the United States authorized a, reduction of '25 per (cent of the rates fixed l)y the schedules on goods imnportel in American bottomlls. The treaty with Franle gIt've (a siilMiltar re(l(uction to the French and Spanish vessels entering the halrlbor of New Orleanlls, therelv)y giving the 1French lland Spanish illllpo'ts at thalt city a lower duty than was imposed elsewllere in thle t'llited Stat'es. For eight years the Territory- of Orleans had tan essentialllv differlent tariff systemn fronl that of aniy other portion of the tTnited Staltes. The claims of the U'nitedl States to Floridat were confirmelld by Spain in the treaty of 18!. After we had taken possession the laws tregulatingl the imlportation of foreign goodls into the -United States were enfor'ced against the imnports from Florida1 until Congress macde our laws operative tllereil. Commlenting upon these and other instalnces, the Suprellme Court of the United States saxy (Fleming r,. Page, 9 IIoNr., 1)P 616, 617): The Treasury Department in n1( instance t}hat we are aware, of sinlce tile estal)lishnmeit of the G(overnment has ever rcotgnizedt a place in a newly acquired country as a domestic. port, unless it had been previously mlade so }by act of Congress. In 1856 canle the Dred Scott decision, which ]has already been reviewed. BIlt that case takes on an added interest at this point of the investigation, because it is the one case in our history where an appeal was.taken from the Supreme Court to the sovereign people. The opponents of slavery availed themselves of an ":appeal to CGesar," and their adversary followed the case into the tribunal wherein the sovereign people register decrees. Two new expounders of the Constitution appeared-Stephen A. Douglas and Abraham Lincoln. A new doctrine was enunciated as 105 pertainingv to thel controversy, and a new theorem was dleclared1. Douola s a nnounceed the (octrine of sqatrsvreignty," which, inl short, was the inherent right of the inha~bitants of thel Trrl-it-ories to grovern thmselves tandL to pass upon their (lonestic, institutions, amlong. hINh was, slaverv. Lincoln anntOInCed the thieoreii. *.A house diividled catrainst itselof ccan not stand." 'This nation wvill he. aCll slave o i. allI freve. in 1S6( the approach of a, Presidential elcin Ion tat deivers views regarding the dloctrine that the Constitut~ion wvas in force iii then Territories.~, cad pelpiojw~ o!/o/e. had divided the people inito three, grecat rltese( views found exIpressioln inl the niational platforms tadoptedt by three conventionls. Th -mcatie conveiitioii which nominated [) oui ( Ia sdeclared: I~nasiuceh as4 differences,, (it opIini in exist inl the lDemioiratic party as ti ) tlie nature anil~ extent-of the pmviers of a Territtria! h-xislature, andl as, to the p iwers awl (luties it Congress, under thle Cminsitution 1) thle 17i nite(l states-, ( ver tile institution o)I slavery within the Territories; tI 1sol0rrl, That the IDemnocratic laity will al i( le liy t le (Ileisi( ns, 4 the Sulpremle C uirt o)f the Initeil States mli the questions, otf ci )stitutionial lw Douglas was the eilllodimc~ilt of the doc rine of sqjuatter, sovereignity, and hlis platform was cons41tnicet so as to eiialble the D emiocrats -who ieljectetl that doctrine to sup)port himi inl the election, aii re th question of the soundness of the doctrinme to the Supr-emiie Court. Trhe Democratic convention which in miiiatc-l Brecki nridore., declared: 1. T Iiat t Iie governmi iient o f a Te r r ito)ry organ'lize hv an a IIIICt of COIIonr 1ess i s j vlyi s~.oilwl and temporary, and (luring its exi itenl( e all (it i zeu1S (f the Unlitedl States have anl equal righ1t to s~ettle with tlieir pr qwertv ill tlie rferrit ivy withmint. their righ~ts, either i)f person or pri pertv, eiiig destri vedI r imiipai i-il. 1v ( migressional ( r Terrnti vial ],Clegilathion. 2. That it is the dut v i)f t le Fedleral(i irvernmient, inl all its lehpartnients-, topV tect, when nlecessary, t Iime, righdts of persnls anld priqwrty il t lie Territories an I wherever els1,e its ('onstitutional authority exteii s. The Republ)lieani convention nom iiatedl Lincoln andl declared: Thot the i 7o'o doqo, that the Omstito~tioo, o4f Its own oo carries slavery imit( any or all i)f the Territories of thme U.niteid States is a dooqevrots po/itic~d ho-ezis, at variaince wvith tilie explicit pimovis-ionls (if that imis~trumienit itself, with comitemphoraneous expositi.0n, anld Nvithi leorislativxc and jumdicial precedenit; i5 Clito iii 01Its Iieid'ew/ (Im1.5.lne)~mr of the, ~e1c,, (Oil hor-owlooif the c('U/il/f/. Upon the, issues as5 joined the sovereign people pronounced decree bv electing; ISO Lincoln electors out of 30.3 votes inl the electoral colleg.oe and a, Republican majority in hoth the Senate andK the houses. The popular vote stoodi: Total for the d.octrine (JDouglas anid Breckiniridge) ----------— 2, 223, 068 Toa aant the djctr-ine (Lincoln and Blell) ------------— 2, 4,57,13 M\ajority o.f t~hiose, oipiosin -234, --- —----------— 475 106 It is doing a grave injustice to the 1,374,664 supporters of Mr. Douglas to class them all as accepting the doctrine announced in the platform on1 which Breckinridge was nominated. The delegates wlho nominated Douglas refused to adopt the views expressed in the Breckinridge platform, and permitted the convention to split in two, rather than subscribe to such a doctrine. That many persons voted for I)ouglas in hopes that the plan outlined in his platform would avoid a threatened war is also well known, and the course pursued by the Douglas Democrats when the war came would justify transferring a large majority, if not all, of these votes to the total of "those opposed." Being defeated in the forum of the people the adherents of this doctrine resorted to rebellion. The discussion was silenced by the clash of arms; the Constitution read anew by the glare of battles. The doctrine and the peculiar institution it was intended and calculated to protect, maintain, and extend was trampled under by the iron hoofs of war. Lincoln's theorem was exemplified. The house did not fall, but it became "all free." It is to be noted that the advocates of the doctrine that the Constitution of its own force extends over the Territories, supported their contention by declaring that the fundamental principle of protection to property and equality of privileges and immuni ities, guaranteed by the Constitution, was Involved. That the property was slaves was a mere incident. The doctrine is not to be tested by incidentals. If it is correct in principle, it was not false as to the incident of slavery. The war ended; the armies disbanded; the soldiers returned home to engage in the pursuits of peace; but they found their places in the business world occupied by others. In most instances the soldiers were without capital, and, having become accustomed to the turmoil of the camp, were little disposed to settle down to the quiet life of town and country. The spirit of the adventurous life they had been living had not died out. At this time the great West was being opened; the Pacific railroads and connecting lines were being constructed; the mineral wealth of the Rocky Mountains was becoming known. Neither capital nor business standing was essential to success. The alluring prospect was not to be resisted, and thous.ands of the soldiers of the war "went west," an1 their friends with them. The nation opened its gates and invited the world to partake of its bounty. "Uncle Sam is rich enough to give us all a farm" was the cry the world around. Thereupon the new West was the objective point of a world exodus. The vast foreign element was easily and rapidly assimilated by the nation and eagerly sought for themselves and their children the knowledge necessary and the qualifications required for American citizenship. The former citizens of the Eastern and Middle States were the dominant factor of each community. The new arrivals 107 frlom foreign lands were their willing disciples in sociology and governlentlal p)olity. All this was very gratifying to the nationl. It was inevitalble that comllllunlities so constitutted and conditioned, engaged in developilng territory w?/;.tl, the acknowledged lilmits of tlhe United States, should receive all ossi ble assistance from Congress and the other departmllets of the Government in the great work in which they were enrgaged. Territorial governments were rapidly c(reated, with powers far in excess of any previously colnferred. But the change was in the ptcti cc, llot the p,'ic;pl,1. The Territories were still (,ctet(d and the power's confe'i'r d. The nation continued to govern them by virtue of inherent sovereign rigllt. The doctrine of popular (squatter) sovereignty in the Territories is incompaltiible witli the fundamental conception of the union of States tland is thoroughly discredited. In Snow /. IUnited States (1S Wall.. 31.-320) the coutrt say: The government of the Territories of tlhe United States belongs(,, prilnarily, to Congress; and, secondarily, to suchl agencies as Congress may establish for that lmrpo)(se. During tlie term of their pupilage as Territories they are mere delpend(encies of the IUnited States. Their people (1d not constitute a sovereilg power. All political authority exercised therein is derived from( the (;eleral (Governlmet.n It is, indeed, the practice of the GovNernment to invest these (lependencies with a limited power of self-government as soon as they have sufficient population for tlie lmrpose. The extent of the power thus granted (lepnl)(Is (ltirely upon the organic act of Congress in each case, and is at all times subject to, sucll alterations as Congress may see fit to a(dopt. In National Banlk c. Coulty o(f Yanlkton (lol 1'... 1383) tle colllt, speaking 1by 1Mr. Chief Jlust icie Wa'ite. say: All territory witlin tie jitrisdictioo of thle Unitedl States lnot inclulde. in any State must necessaril 1be governed byl or under the authority of (Cngress. The Territories are but political subdivisions of tlie oIttl!/iog 1do0,iio0 of the Unite(l States. Their relation to the General Government is much th e same as tlat which counties bear to tie respective State., and Congress may legislate for thei-i as a State does for its municipal organizations. The organ(ic law takes the l)lace of a co),stitution as the fundamental law of the local government. It is obligatory o*n and binds the Territorial authorities; but Congress is supreme, and for the purposes of this department of its governmental authority has all tfe powvers of the people ot' the United,States, except such as have been expressly or by implication reserved in the plohibitiion.s of the Constitution. * * * Congress may not only abrogate laws of the Territorial legislatures, but it may itself legislate directly for the local government. It may make a void act of the Territorial legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the Territories and all the departments of the Territorial governments. It may do for the Territories what the people, under the Constitution of the United States, mayR do for the States. The ruie herein announced is broad and plain. In legislating for the States Congress exercises only such powers of sovereignty as are conferred upon it by the Constitution. In legislating for the Territories Congress exercises all powers of sovereignty not prohihited by the Constitution. 108 In Mfurphy i. Ramsay (114 U. S., 44-405) the court say: But ini ordaininig government for the Territories and the people who inihalbit them all the Jliscretion wNhich b~elongs to legislative power is vesteil in Congaress~ '111( that extends, 1;evon(1 all controversy, to determining by law from time to time thie form of the local government in a particular Territory anil the qualification of those who shiall adlmiinister it. It rests with Congress to say whether, ini a griven case, an-y of the peop~le resident in the Territory shall participate in the election of its oflicers or the making o)f its laws, anld it may, therefore, take fro-m them any right, of suffrage it. lay previouisly have conferred, or at any tim-e inodlify or abridg o t, as it inay ileenm expedlieit. Ti-,,rgto caself-government., as known t~o our systemn as; a comistittition)ial franchise, belongs, undler the Constitution, to the States arnd to the lpeople thereof, by whomi that Constitution was orilainecl, andl to whom by its tern s all pow~er Tlut. coniferredl by it up~on. the. (bivernmnent iif the United States wNas exp~ressly reservc(l. The p~ersomial and~ civ-il rights of the inhabitants of the Territories arec secuire(l to t hem, as to other citizens, 1y the p~riniciples of constitutional liberty wNhich restrain all the aigencies of govenin\ tt admainl herpltclrghts are franchises which they 1h1)1( as privileges in the legislative dis,~cretion (if the Congress of the Umnitedl States. Ini United States,, Lyon, et al. 9% ilnckatbee- (t) Wtall.. 41.4. 434) the court. sav: All calptures iii war vest. prirnarily in the sovereign~, lout in respect to reyal p~roperty Chanaellor K-emut says the. acqluisitio n bw thec coniqueror is iiot fiilly conisumimi ated. until c( inirnieil by a ti'eaty of peace or by the emitire siuiiiissioii or destruction of the State to which it belonged, which latter ruile con-trols the question iii thec case before the court, as, the confederation heaving been utterly dlest~royedl, no treaty of p~eace wasor, Ci ilt 1 be made, as a. treaty requires at least two ci mitracting parties. Power to acquare. terr-itory, (either liv c(imIquest or tr~caty-, is vestedl by the Constitution in the I 1iiied States. Conq1(uered territory, how\ever, is usuially v lud as a mere military oceulniat iii mitil the fate of the natiomi from wh0ich it. is coiiquered is (letermiimeil; bit, if the natioin is eiit~irelv smbdlueil, or in ca.5c it be- (estrove~l aniii ccase-, to exist, the right o)f occupation becomes lpermiacieii. and thie title vests ab~solutely ini the, coii~ueo.Complete conquest, by whatever, iio0le it iiay Ibe lierfecteil, carr-ies with it. all the rights of the fornier government; o)r, ii (othier wNOrds, the conqlueror, by the cmi i qietion o)f his conquest, becomes the absolute owner of the prmtp:'rty conquereid fromi the enemyv, iiatioii, or State. His righits are no loniger I imiit~ei to mii ere occulratiin i (f what l ie has taken into his actual po~ssession, but. they extemiid to all the, property and rights oif the conquered State, includinig even debts as w~ell as- persional anid real property'. In Talbott,'. Silver Bow County (139 U. S., 446) the court, speaking lby M.r. Justice, Brewver, with reference to a Territory, say: It is~ mut a distinct sovereignity. It has no independent powers. It is a polritical Comiimiiumi1itv organizeld liv Comuizress, (ill whose powers are, e-roed iry Co]iurless, anid all w\hose acts are subject to Conigressiomial supervision. Its attitude to the (leneral ~(ive(_rjjimiie,1Iit. is mIo nj(iorc inilependenit thian that of a city to the, State iii which it is situatedl, amil which ha~; given to it its municipal organization. If (ll the powers are (reated by (bnfp~exx then nonie is derived f ron the (Coinstitution. Nione springs fromt thle, inherent rights of individuals or commniutties. Ini Shivelye Bowlhy (1,52 LT. S., 48) the, court, spcakin- I-Nv Mr. Justice G~raV, say: 109 By tlhe Constitution, as is now well settle(, the United States, having righltfully acquire(l tie Territories, and being the only governmient which (can illllose laws upolln thenl, havet the entire dominion andl sovereigntv, national and nmunicipal, Federal and State, over all Qle Territories, so long as they remain in a Territorial condition. The legislature of a State, in legislating for the llunicipalities situated in the State and the inhabitants thereof, exercises all the powers of sovereignty belonging to the State the exercise of which is not p)ohibited by the State constitution. Therebiy the ' inherent rights of malln" during our entire history have been exposed to the peril of the unrestricted discretion of State legislatures in the same way as these rights in the Territories are exposed to the discretion of Congress. Possessing this broad discretion, it is certainlll safe to say of Congress that ili legislating for "territory within the jurisdiction of the Unlited States not included in alny State," constituting "''the outlying domillnion of the United States"' (101 U. S., p. 133)It mlay legislate in accordance with the special nee(ls of eatIch locality, anld vary its regulations to nmeet thle conditions an(l circunlllstances of the people. (lndlelmaml c. United States, 86 Fed. Rep., 459.) Is al different rule to be,applied to the territory acquired b-y a ('onquest made necessary )by the emergencies of the Awar with Spain, and to the varied races inhabiting it, than is applied to territory constitutitng a11 integral p)art of our domain whenl the nation w'as found(ed Are the inhabitants of the islands, sovereignty in which was ceded t Spa)in in 1898, after complete conquest, entitled to rig'hts aind privileg'es, immunities and benefits denied to soldiers of the Rlepulilic who live il OklahomtL a lhce soNverei):' porwer of Congress ill g'oveClnilg territory,H)subject to the jurisdiction of the LUnited States, but olitside of the limits of the several States, h1as been discussed )by the Supreme Coullrt inl: 11111111 im('r of cases ivl\olving the right of C ong'ress to establish courts, cionfer jurisdiction thereon, and regulate lr ioc((du(ll tlerein. In va1iotis ways these Territorial courts have beeni assailed, the (.'O1i teiltion e.illng that in their creation Conlgress exercised the power collferred by Article III, section 1, of tlhe Constittionll, anlld i the exercise of sali( polwer Conglress waN5s sib1jec(t to tile limitatiols and restrictions 1provided in; the Constitution. Inm Benner1,. Porter (9 H-ow., 235, 242) the coturt say: The (listinctionl tbet, ween time Federal and State jurisdictions nIlller thle Comstitution of the I[nitol States has no foundation in thlese Territorial govermilients, anmdl conselquently no uc1(h (listinctiion exists eithier in respect to the jurisdiction of their courts or the sulljects sulbmittedl to tlecir cognizance. They are legislative governmients an(l their courts legislative courts, Congress, in the exercise of its powers in tlhe ortanizatioll and governmient of the Territories, comlbinilg the powers of botlh tile Federal and State 1auttlorities. There is but omce systeml of go(verinmient or of laws op)erating within tlheir limnits, as neither is subject to the constitutional provisions inl respect to State an(l Feederal jurisdliction. Thexy are not orgalmized ulnder the CoIstitution nor subject to its coni)lex distribution of the powers of government, as the organic law, but are the creations exclusively of the legislative depiartiiment, and sublject to its supervision and control. 0 110 The United States Supreme Court has always adhered to this doctrine. (American Ins. Co. i. Canter, 1 Pet., 511, 546; Clinton?. Englebrecht, 13 Wall., 434, 447; Hornbuckle r,. Toomb)s, lS Wa\ll., 6418, 655; Good e. Martin, 95 U. S., 90, 98; Reynolds r'. United States, 98 U. S., 145, 154; McAllister r'. United States, 141 U. S., 171, 180.) The question has also been presented to the Supreme Court b)- cases involving the right to trial by jury. Trial by jury, in the abstract, is not a right, but a means of seculring a right. The right involved is justice. Justice is an inherent, inalienable right of man, which no sovereign may properly refuse. Trial by jury is one of the fixed institutions of the common law, and where the common law prevails, this procedure may be said to attain the dignity of a right. That is to say, it is so ingrafted on the common law as to be an essential part thereof. But this is not true of the civil lac. The common law belongs to the Anglo-Saxon race. It is the creature of their civilization. Centuries of adherence and devotion to its teachings has given it the character of righteousness, if not of right. The guaranty of trial by jury dates back to Magna Charta, and, with an Anglo-Saxon, no right need seek other source for its vindication. But the Latin races can assert no such title. Whence their claim to the rights secured on Runnymlede and guaranteed by Magna Charta? Their adherence and devotion has been given to the civil law. If the manifest result of attempting to administer justice by jury trials would be to defeat the purpose and deny the right of justice, is the sovereignty which is bound to sustain the right to justice bound to rely on trial by jury? Must the substance be sacriticed to preserve the shadow-, The comnllon law did not attach to the territory acquired by the United States in the late war, upon the act of acquisition. The civil law continued in force, as it did for a time in the territory acquired by the Louisiana purchase, and in a portion of which territory it remains in force to-day in modified form. If the rules of the common law are to become of force in territory acquired by the United States, in which territory the civil law had prevailed prior to the acquisition, the change nust be accomplished by Congress or governmental agencies authorized by Congress to take such action. (See authorities hereinbefore cited.) In Thompson v. Utah (170 U. S., 343, 346), tle court, speaking by Mr. Justice Harlan, say: That the provisions of the Constitution of the United States relating to the right of trial by jury in the suits at common law apply to the Territories of the United States is no longer an open question. Webster v. Reid, 11 How., 460; American Publishing Co. v. Fisher, 166 U. S., 464, 468; Springville v. Thomas, 166 U. S., 707.) In view of the provisions of section 1891, Revised Statutes of the United States, and the special acts of Congress, hereinbefore referred to, whereby the Constitution and laws of the United States not locally 111 inapplicable are extended to the Territories, the declaration (quoted is incontestable. The case of Webster /'. Reid (11 Hlow., 47,, 4, 4), decied il 1850, arose in the Territory of Iowa. The courlt, speakiiig by MrI1. Julstice McLean, say (p. 460): The organic law of tle Territory of Iowa, 1)b express provision aiil by reference, extended the laws of the lnited States, including the ordinance of 1787 over the Territory, so far as they are applicable. The act of the Territorial legislature involved il Webster '. Reid prohibited trial by jury in matters of fact involved in cases of a certain character. For the reason set forth in tlhe above quotation, the court held, as to tile act of the Territorial legislature, thatIn this respect thle act is voidl (p. 460(). Reynolds,. United States (98 U. S., 145), was a criminal action arising in Utah Territory. In that case the court say (1). 154): By the Constitution of the United States (Amlend. VI), tlhe accused was entitled to a trial by an inpartial jury. This case was decided in 1878. Tle act to establish a Territorial government for Utah September 9, 1850, chapter 51, section 17, 9 Stat., 458, providedthat the Constitution and laws of the United( States are hereby extended over and (leclared to be in force in said Territory of Utah so far as the same or any provision thereof may be applicable. A subsequent statute made specific provision for trials by jry i tlhe Territories. (Act of April 7, 1874, chapter 80, 18 Stat., 27.) Section 1 of said act closes with this proviso: Provided, That no party las been or shall be dleprivel of tlie righlt of trial by jury in cases cognizable at common law. The case of American Publslshing Co. o'. Fisher (16.6 U. S., 464), decided in 1896, wtas a comlmon-law action originating in the Territory of Utah. The court held that litigants in comlnon-law actions in the courts of that Territory had a right to trial by jury. Mr. Justice Brewer, in delivering the opinion of the court, says (p. 466): Whether the seventh amendment to the Constitution of the United States, which provides that "in suits at common law where the value in controversy shall exceed twenty dollars the right of trial by jury shall be preserved," operates ex proprio vigore to invalidate this statute may be a matter of dispute. He then reviews the decisions and the acts of Congress of 1850 (9 Stat., 458) and 1874 (18 Stat., 27), above referred to, and determines the case as follows (pp. 467-468): Therefore either the seventh amendment to the Constitution or these acts of Congress, or all together, secured to every litigant in a common-law action in the courts of the Territory of Utah the right to a trial by jury. 112 The court furither held that the seventh amendment required unanimnitv in linding a verdict as an essential feature of trial,by jury in (conll on-law cases. The rule so announced was 'adhered to in Springville r. Thomnas ((1;6 U. S., T0, 708I). The case of Callan?'. Wilson (127 U. S., 540) involved the right of trial by julry in 'a criminal proceeding had in the Distric(t of Columbia. In deliNvering the opinion of thle court, IMr. Justice 1Harlan sax-s (p. 547): It is contended by thle a)ppellant that the Constitution of the United States secured to him tle right to be tried by a jury, an(l, that right having been denie(l, the police court was without jurisdiction to impose a fine and to order him to be imprisoned until such fine was paid. This precoise qnestionl is now, for the first time, presented for leterminination b) this court. The contention of the Government is that the (Constitution (les not require that the right of trial by jury shall le secure(d to the p)eople of the District of Columlnbia. * * * Regarding the position taken by the (Governmient, Mr. Justice Harlan, continuing, says (pp. 548, 549): I)pon a careful examlination of this position we are of opinion tlhat it (can not ~be sustaine(l without violence to the letter anid spirit of the Constitution. The learned justice then discusses the use of the words ' criime " and "criminal prosecutions" in the Constitution and amendments, and the provisions regarding trial }y jury, alld arrives at the conclusion thlat the provisions regarding trials 1)- jury were inserted for the purpose, as stated by himn (pp. 549, 550)to have been the supremee law,,f the lanl, and, so far as tih agencies of the General (;overnmente. were c'oncerne(l, a full a (lt distinct recognition of those rules, as involving the fund(anmetal riTghts of life, liberty, an1l property. Conceding this to ble true, is sucll right of a higher character than the right of representation in the )ody(l empowered to impose taLxatiOl n Is not " trial by jury " a imethod of procedure in courts estalblished and maintailled for the purpose of securilng the due adlmlinistration of justice We have seen thalt the Suplreme (Court have always adhered to the doctrine that Congrress in establlishing courts in the 'l'erritories and conferring jurisdiction thereon was not loutnd by the provisiols of the Conrstitution rieclardino the judicial powers of the United States. Is Conlg'ress bound ~by the provisions regarding procedure and free as to the character and jurisdiction of such courts? Continuing, IMr. Justice Harlan says (p. 55o): There is nothing in the history of the Constitution or of thie original amendments to justify the assertion that the people of this I)istrict may be lawfully delprived( of the benefit of any of the constitutional guarantees of life, liberty, and property, espec(ially of the privilege of trial by jury in criminal cases. In the draft of a constitution reported by the Committee of Five on the tAh of August, 1787, in the con 113 ventioni whi('h framed the C'onstitution, the fourth section of A.rticle XI read that the trial of all criminal offenses (except iii cases of imnleachment) shall be iii the, States where th-ey shall be con-mnlttedl and shall 1)e lby jury.'' (1 Elliott,'s iPeb., 2d edl., 2219.) But that article wat, bv unanimouis vote, amended so as to reawl: '' iie trial of all crimes (except inl cases ot impeachment) shiall be by juy nd suchi trial shall be held in the State where thie said1 crimes shiall have beeni committed; but when not committed within any Staite then the trial shall ibe at such lilace or Jpla(cs as the legislature may direct.'' (1(1 270.) Thie obj9ect of thus amending the secti()n, Mr Madison sa's, was ''to providle for t~rial hy jury of offenses conmnitted out, of any vState.' (3) Madison Papers, 1441.) But does not Mr. MALdison refer to t~;al-s Iat(1 wdtldn a, Statc of offenses committed without the State?~ That the comivention considered the provisiomi as applyig to trials within States of offenses s;o comimitted seemis apparie nt from the proceedings had wvith reference thereto, set forth in 83 MAadis~on Papers, 1589, ais follows: Article 2, section 2 (the third paragraph). Mlr. Phicknev and MAr. (Tierrv movedl to annex. to the end, 'anl Ca trial by jury shall he lpreservedl as usuial inl civil cases.'' Mr. (40MAMin.. The constitution of juries is (different in different States, and thie trial itself is i~s'od in (lifferent cases in different States. Mr. K-ing urged the same obje(ctions. (ieneral Pineknev also. Ilie thought such a clause in tlIe Comistitution m'oull h~e pregrnant with enil arrassmnents,. The mnotion. was disagreed to oww. ('00. (iontinuinllu, the opinion states: In Plevnoldls r. United EStates (95 V. S., 145, 154) it was taken for grantedl that the sixth amendmnent of the Constitution securedl to the people of thie Territories the r'ic~ht of trial by jury iii criminal prosecuitionms; and it. hiad been pr'eviouslv hield in Webster '. IReid (11 [low., 4:37, 460) that, the sevenith amlendinml(nt se(curedl to them a like righit in civil actions. at c'onimion law'. We ('aim not. think t lat the peolple of this District, h)ave, ini that. regard, less rights than thiose accor(led the, peo)ple of thie Territories of thie Unitedl States. The act. of February 21, 1.871, establ)ishin'or a g'o'erninent, for- the District of Columbia, piov'idedl as f ollows: Sectfion 34. ***And the Constitution and all the laws of thie United States whichi are not locally inappli('able shall hiave the same force andl effect withiin the saidl District of Columbia as elsewhere wvithin the United States. (1) Stat., 426, chap. 6i2, sec. 34.) The right of trial. by jury. however high its character, is an acquired rio'ht. not an inheremit one, such as life and liber-ty. If it is actqnired by and through the, Constitution, it can not be -acquired where the Constitution is not in f orce. If the right of trial by3 jury in the Territories is derived from the Constitution, the right was in abeyance until Congress extended the Constitution over the Territory. (See authorities hereinbefore referred to.) Would not a like rule apply in the instance of the District of Columbia? If the right of trial by jury is one of the inherent rights of man, it would seem that one of the States in t~he Union could not properly deprive himi of it, and if such deprivation was attempted the General 1394-03 ~8 114 (GIovernlent would protect a national citizen inl the asserition of such rig'ht. The Suprenlme Court of the United Stattes has expressly held: A trial by jury in suits at coinmon law pendling in the State curts is not a privilege otf ifmunin ty of national citizensllhip wlhich the States are forlbiddlen by the fourteentlh amenlment of time Constitution of the United States to albridlge. (Walker r. Sauvinet, 92 U.., 90.) And in crimlinal cases the holding of that court has been: The fifth aml( sixthl amendments to the Constitution of the Unitedl States (relating to criminal prosecutions) were not designed as limits )O11 State governments. (Twitchell r. Commonwealth, 7 Wall., 321; Barron '. The City of Baltimore, 7 Pet., 243; Fox r. Ohio, 5 Bow., 434; Smith r. Maryland, 18 How., 71, 76; Withers r. Buckley, 20 How., 90. ) In these cases the court hold that the limitations of the Constitution apply to Federal courts only. As has already been shown., the Supreme Court of the United States,sustain the doctrine. that courts created in Territories ailre not Fede.ral courts, although (,reated by Congriess or by virtue of authority conferred by Cong'ress, and 1are free fromi the restrictions and lilmit'atiollns of the Constitution. By parity of reasoning', a like rule would lbe a:pplied to courts established by Cong/rcss inl oullr newly acquired island p)ossessions. If the wright of trial by jury as ac(luire(l from()l a source antedatinio the Constitution, r'unninlg through all the history of the Anglo-Saxon race, recognized, liut not created, bvy Amagna Charta, part and parce.l of our civilization and racial inheritance,:a differe t iquestion is presented, for tlhe right then becomes one guaranteedi by laws higher than the Constitution, anl the right to claimni such right is to he dleterlllineld y the same hig'her laws. Tested by the rec-ui'rellments of these hioher laws, the rights of the citizens of tile ID)istrict of Columbia are ias far removed froni those of the varied races in tlbe Philippines its are the degrees of longitude marking tlheir geogr'aphical locations. IV. THIE CONSENT OF THIE' (GOVERNEI). All powers of all governments rest upon the allegiacance of the people over whom the government is instituted. Without allegiance there can be no government. Allegiance niust not l)e confounded with citizenship. Allegiance lies back of citizenship. Tlhe theory of our form of governmlent is, that allegiance is created by the consent of the individual; while citizenship is createtl by the consent of the sovereigntv. That is to say, allegiance originates with nian, citizenship with the government. The word ''allegiance"' is derived from the Latin 1//'/.re, to bind to, and means the tie which b}inds the individual to the g'overllenet. Acquired allegiance is that binding upon a person who was bor11 an alien but has been naturalized. 115 I.ocal or actual allegiance is that which is (due I'rom an allic i while resident iln a (ountry in return foir the pr)ot(ection a:f'orded by the goi'vernent. Natural allegiance is that which results froli thle birthl o(f a perl-oll withlin tlie territory and of a sire acknowled(lingll alleogialnce to the overnlllent. (Kent's Coil., vol. 2, 42.) Allegiance mlay be an absolute and permanent o)liOgation (o) it l:may )e a qualified and temlporarly one. The citizeln owes the fo(l'lel' to his government until }by some act he distiIictly reliionces it. whlile tlhe a lie, domiciled in the c(olntlAr owves a templ)orary alletianc ( olltimllli n) dIuring such residence. (Carlisle,. [Iiited States, 16; Wall., 147. 1:.4.) UIt(der the feudall law the theory prevailed tlhat a persoll was bo(ii(I to give allegiance to the o\verlord onl whose et:ate (e was bo,(,:,nd(l through llis overlord to the killn, (ll tlhroilloo t,(e kil,, to ((1. lTis was predicate(l on the theo!ry that kiis lll(tle 1,- dilvi\ie riiLlit, alId(1 that throughl him such rigtlit (lesce(lde(l to the o(verlor(l. TI'llerefore sulch allegiance was a dlut- illpl)ose(l by the fact o(f,irth \ was as billding as allegiance to od(, and could(t(1 bnot be av(i(lded except witli tlhe consent of the overlor(ld and the kiig. IFromi this arose the system of vassalage under which men were believ '(ed to )(be attlached to t the. soil o() \whiiclh had occurred the accideiit of their lirthl. At the tiliie tlhe leavein of in(ldepende(iice was fermeiti.ng the spirit of t v(1oltttiion il tlie A\lerican cl ololni.es this fullda:melntatl (dogma of tlie fe(ll(ll l: lw w\\vas.; acclte(l doctrine. The Tories advlanle(l it i (l)lppositioll to t1e atrgtnients for illdepe(ndelce. The ad(lv(cates of itlnldepende nce for tle( (,oloies (et, this alppeatl by a direct challenge (of the diviie ri'lght (of kiigs to commandlll allegiance, therell(vl seci(ll tlie power( to rule (or (ov(l'rn. They insisted that a man had the. rightt to di )spose ()tf is i alleg(ialtce as he saw fit. If at man wanVted to o)pel)l or inmpliedly acknowlelde allegiance to the King of Greac IBritain le coull(l ldo so(. iand if le( saw lit to transfer his allegoiance, with its atte(ll(nt 1)wer, to almlthler sovereignty, he could do so without s(cur'ilon tl lit permis.ionl of 11is then sovereign. The ftundamenltal idea of the DI)claraltion o( (1 depe('ldelice is a (denial of the divine rilght of kings to rule; that is. tialt kings d(eri ve their (laimis to the alleg(iance of tlie (goverie(l ftroml ( rod. I llece the leclaration that governments derive their just p1(oers ' froim tlhe consenlt of tile governed." This was a startlingl (loctrine ill thlose (las. So deeply rooted was the idea that kings ruled b1y divitne riolht tliat it was not to )be overturned byv tlhe merex declarationl of at co()trarv (octrine(, however true. Trle new doctrine wais not unlliversally a1ccepted. (even in the colonies. Therefore, to securle tile adherenlce of those who rejected it and the acquiescence of other nations by wlhom recognition was desired, the Declarationl of Indepen(delce entered into 1an elablorate defense of the proplosed change of allegiance 1y setting forth the many acts of wrongd~oing by which the transfer of arllegiance 116 was justified upon the ground that the King of Great Britain had forfeited his divinle right, if such right ever existed, and that by re'as.on of said forfeiture the people of the colonies are albsolved from all allegiance to tle British Crown, and that all political connection between theml anl the State of (;reat Britain is, andl ought to be, totally dissolved. The derivation of powers froml the consent of the governed proclaimled in the I)eclaration of Independence refers to that storehouse of all the powers of all governments —the allegiance of tile people constituting the body politic. The declaration that this allegiance must be conferred by the consent of the governed and could not be required by (divile right was a direct blow at the foundation stone of the feudal systeill and tlhe corner stone of all governments then existing. A\ttenition is directed to the fact that the Declaration sets forth that it is "tlhe just j)ov'c-')'x" which are derived. The Declaration did not 11meaI when ltteretd, and does not mIean now, that after said powers are ac(qiri'ed their subsequen-t exercise in the matter of enforcing laws create(d pursuant to said powers should be regulated by the caprices of tlle ''"governed" as, for examlle, that judgment in a criminal action (call onil\ be entered(l, the consent of the accused. T'1e existence o(f this distinction enabled the (Governmllent of the United States to denyl the right of rebellion. The successful conduct of the R1evolution established il our country the plrinciple that the right to transfer his allegiance without the conselt of his so\vereig'i is one of the inherent rights of man. IBut when tlhe foiluders of tlhis nation ctame to (exercise this right the ideas of the fetidal systemt wcere so ingrafted in the Ilil(ls of the peolle that involuntarilily-, no doubt, tlhe general plan of the system was preserved, althiouogh miodified to conforni to the vital lrinlciple of the new doctrine. A sovereign State was substituted for the over-lord as the primary recipient of tl(e allegiance anId a confederation of States for the king. The (General Governlment or confederaction of States was, however, mlore like an elector thain a king. The central idea of the confederation -was that allegiance was giv\e anld was thereafter due to the inlividlual States, and( the General Government must look to the States for the allegiance of the people. As citizenship is lased on allegiance, it followed that to tie States belonged the authority to confer citizenshi. Whell the Constiuttion was adopted and this Government established. this idea that the allegiance of the people was primarily due to the State vwas not eliminated. In the course of time it proved a bitter heritage. The idea that a mallnl's allegioance wa s due to the State from which he derived his citizenship was the shibboleth of the rebellion which plunged this nation in civil war. Brought to a realizing sense of the dangers of this doctrine and the conditions and institutions constructed thereon, the nation changed the rule.b the adoption of the fourteenth and fifteenth amendments 117 to the Constitution, the purpose and effect of which are to colfer allegiance upon the General Governmlelt andl ellable tle General Government to reciprocal ly confer citizenslip. 'The (doctrine that a man could transfer' his allegiance without. the conselit of his sovereign l)eing accepted by the Uiited States, oIur Government proceeded to enact naturalization laws inl harnlonny with said doctrine, and asserted the correlative rligh (t to (a(cept the tlransfer of allegiance without the consent of the previous sovereign. The, inations of Europe, founded ulpon the feudal systeni, rejected the doctrine and denied the right of the United States to (enforce and practice it, and continued to assert s(vereig'nl 1we\'s ove prior sulljects wllo had made siuch transfer. This led to tile war l)etweell the Ulilited States and Great Britain in 1812. The contiltued adherenlice to timis doctrine has involved the United States ill. alllost (ceaseless (liploillatic correspondence with foreig'n nations. rThe statute 3, Jatc. 1, chap. 4, provided that p)ronisiig ob(edience to anyT other prince, State, or l)otentate, subljecte(l thle l)ersoi so dloing' to be adjudged a traitor, and to stifter the p)elnalty of high treason. In respect to the naturalization law of the Lnited States, ptassed in 17!5, Lord (Grenville wrote to otur minister, Rlufus Kino: No British subject (an, by such a form of renunciation as tlhat which is lpresclrild(l in tlhe American law of naturalization, (livest Iiimself of iis allegian('ce to his sover_ eign. Such a declaration of renunciation imale by any of tlie K in's su l jects \xwti 1l, instea(l of op)erating as a protection to t lhe(I, I)e (c )Isit lerc 1 ai act irhll y c(rim I: Il on their part. (2 Am. State Pap., ip. 14(9; Flitchl /. We her, ) I ILre, 1. 51.) The right of expatriation was tlhe stl ject of an elalra1 te ol)illioll by Attorney-(Greneral (ushinig in 155i. Thereil ln e sai(l: The doctrine of absolute anil iperpetual allegiance, the ro)t of tlie dltnial,if ay right of elnigratioll, is ilal(lillissille ill tlie 'nittdl States. It was a miatter in,,lvedl inl aii(d settled for us 1) thie Revoliution, whlich f, iuiled tlie.Aiiericaii l'nii ln. i S ( )p. Atty. (en., 1). 13!9; 9 ()p. Atty. (ien., p. -5t(; Atty. ( eni. Plack.) The right of expatriation was declared by C(ng,,ress t(o) )e a natural and inherent one, in this country, b1 act of,Jiuly 27. lS(S. (15 Stat., 223, chap. 249; sees. 199,)(9, R200, ev. Stats.) While the Government of the United States is thus firmlv committed to the doctrine that its powers restingr on allegianlce are derived from the consent of the governed, it does not reqluire that such consent salall be evidenced by individual declaration, excepting when it decides to confer citizenship by naturalization proceedings. Ordinarily the, consent to allegiance is presumed from the fact of residence in the couiitry and participation in the protection and othler beneits of organized government. This rule is applied to the native-born inhabitants as well as the inhabitants of newly acquired territory. In regard to this rule Halleck's International Law says (vol. 2, sec. 7, p. 475, 3d ed.): The transfer of territory establishes its inhabitants in such a position toward the new sovereignty that they may elect to become, or not to l)ecome, its subjects. Their obligations to the former government are canceled, and they may, or may not, become the subjects of the new government, according to their own choice. If they remain 118 in the territory after this transfer, they are deemedl to lhave elected to lbecoine its sultjects, and thus have consente(l to the transfer of their allegiance to tlie new sovereignt!. If tlev leave, sine (1ti)o rc('ere'tdi, they are dleemled to lave elected to contille aliens to the new sovereignty. The st/t.os of tlle inhabitants of tlie conquered anll transferred territory is tlhus determlined by their owni acts. This rule is tlie most just, reasmoablle, and convenient whichi could lie a(ldopted. It is reasonable on tile part (,f tlhe conllueror, who is entitlel to know who b)ecome his siljects and who prefer to continue aliens; it is very convenient for tllose whlo wislh to b)ecomle tilhe sul)jects of tle new State, andl is not unjust toward those wlio (leterlinie not to lecome its suljects. A(ccording t th is rule, domicile, as understoodl and delefilne in public law, detcerlines tlie lquestion of transfer of allegiance, or rather, is the rule of evidence by wliclh that (luestion is to le decided. rl'T1.ning' to the treaty of peace with Spain (1898), we find that Article IX p,)rovides as follows: Spainislh sul)jects, natives of the Ieninsula, residilg in the territory over which Splain by thle prsent treaty relinquishes or cedes her sovereignty, may remaiii in sucl1h territori or mav remlove therefrom, retaining in either event all tlleir rigllts of lrolerty, includiing the righlt to sell or dispose (of such property or of its l)rocee(ls; and tley! silall ials)o have the right to carry on their indu4trv, commerce, and I)rofessions, lcilg sublject in resplect tllereof to such laws as are applicable to other foreigners. ll c.-lse tley remain in the territory they inay preserve tlleir allegiance to the Crownii of Spain by making, blfore a court of record, withlin a year from the date of tlIe exchange of ratifications of this treaty, a declaration of tlleir decision to preserve suclh allegiance; in default. of wlhich declaration tlhey sliall be held to have renounced it, and to lave adopted thle nationality of tlle territory in which thley may reside. Thle civil riglhts and lpl(litical status of tile native inhabitants of the Territories hereby ce(led to tlle United States shall be determineid by Congress. (Clearly, by this stipulation, the United States nlot only recognized but gntaranteed to their full extent the rights elmbraced in the b1road termn '" tile consent of the governed." Itf in tilme to come a resident of said territory desires to withdraw his alle,,'ialce a(nd bestow it elsewhere, the United States accords him the lii)ertv, reOluiring' only that if lie remains within its jurisdiction lie sla1ll co()sent to the due obselrvalce and administration of the latws of the land. This would be the rule in Arcadia alid will probably not be superseded by tlie iillennitium. CITIZENS IIIl'. Citizensllip is not a necessary resultant of an acknowledgment of allegiance. Citizenship is not a price paid by the United Statcs for the tallegiance of mlen. The correlative of allegiance is protection. (Clarlisle,. United States, 16 Wall., 147,:154.) There aIl'1(e manlly persoils withil the jurisdiction of t}le 7United States from whom allegianceC in some form is due who nre lnot citizens of the United States. M.iany soldiers in our Arilvy, sailors ill our Navy, seatlen ill our imerclailt ma rin, travelers. tempcl)orary sojourners, Indianls. Clhinesec, convicted 'rilminals, and(l. ill another and limited senise. minors.l ad(1 woNiein 1belong( to thlis class. The celebrated case of Martin Koszta illustrates the obligations of thle United States (:-overnCncnt upon acceptimg' a proffer of alleg(iance from aiI alien. Kosztat c:ame o thle U 'ited States andll took out his 119 first papers" under the then existing naturalizatlion laws. These papers contained at declaration of intention to beconle a citizen of the United States and constituted, in effect, a renouncemelnt of his formler allegiance and adn acknowledgment of allegiance to the ( overnment. of the United States. Wh ile in Sniyrna, Koszta was seize(d and placed in confinement by order of an Austrian official. The stub sequent proceedings are descrilbed -by Mr. tJustice Miller as follows: One of the most remarkalle episodes in the history of our foreign relations,, and which has beconi e an attractive historical incident, is the case of Martin Koszta, a native of lIungary, who, thoughl not fully a naturalized citizen of the l'nite(l States, had in due form of law made his declaration of intention to become a citizen. While in Smv!yrna he was seized )y colmmandl of thle Austrian co(nsul-general at that place and carrie( onl lboard the IHl.sstr), an Austrian vessel, where hle was held in close confinement. Captain Ingraham, in comllmand of the Anmerican slolop of war,/. LouTis, arriving in port at that critical period, and as(certaining that Ko\szta ha(1 with him his naturalization papers, demandedl his surrender to him, andl was compll)elle(l to train his guns lpon the Austrian vessel before his demnands were complllied with. It was, however, to prevent bloodshed, agreed that Koszta should ble placed in tlie halds of the French consul, subject to the result of dil)lolatic negotiations lbetween Austria an(l the Unitedl States. Thle celelbrated correspondence between Mr. MIarcy, Secretary of State, and Chevalier H-tilsemnan, the Austrian minister at Washington, which arose out of this affair a(nd resulted in the release and restoration to liberty of Koszta, attracted a great deal of public attention, and thle position assiumed bly Mr. 'Marcy met thle al)proval of the country and of Congress, wlho voted a gold imedal to Captain lngratham for his conliuct ill the affair. (I n re Neagle, 135 U7. S., (i4.) Citizenship under our Government is not aI right inherent to all men. If it is. then by what right is it denied to any personi applying therefor~ Why do we prescribe qualifications for naturalization atnd deny the privilege to Indians and Monogolians! Citizenship is conferred by tlhe (,overnmnent. It carries with it great powers, rights, privileges, an(dt immunuities. Therefore the (Government exercises its discretion in bestow-ing it. A man can not confer it upon himself of his own volition or by his act of acknowledging allegiance to this Government. There are but two ways of acquiring citizenship in the United States: 1. Compliance with the naturalization laws. 2. Birth within the territory and a.lleogiance of the United States. In Elk?,'. Wilkins (112 U. S., 94 101-102) the court, with reference to the fourteenth amendment. say: This section contemplates two sources of citizenship, and two sources only: Birth and naturalization. The persons declare(I to be citizens are "all persons 1born or naturalized in the United States and subject to the jurisdiction thereof." The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the Inite(l States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they (ldo to the time of naturalization in tihe other. Persons not thus subject to the jurisdiction of the United States at the time of birth can not become so afterwards, except ly being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. 120 The treaty with Spain (Paris, 1898) did not attempt to naturalize the inhabitants of the islands acquired by the United States. On the contrary. it provided that the civil rights and political status of the inhal - itants shall be determined by the Congress (article 9). It follows that they can become citizens only by a specific act of Congress. Attention is directed to the fact that the pending bill for Hawaii contains provisions regulating the naturalization of the inhabitants of said islands. TIHE RIGHT OF UNRESTRICTED ENTRY INTO TIHE UNITET) STATES. The inhabitants of the islands acquired by the United States during the late war with Spain, not being citizens of the United States, do not possess the right of free entry into the United States. That right is appurtenant to citizenship. The rights of immigration into the United States 1by the inhabitants of said islands are no more than those of aliens of the same race coming from foreign lands. The Chinese resident therein will be absolutely excluded under the provisions of the Chilese-exclusion acts. (The Chinese Exclusion case, 130 U. S., 581.) The Malays as as ell as the Chinese or Miongolians may be debarred. Certainly, so long als the political department of this Government elect to treat said islalnd( s being outside the territorial boundaries of the UInited States, the question of excluding oljectionable persons or races is of easy solution. The laws of the United States regulating commerce with that Territory have not been altered. Congress has not chllanged tlem, and certainly the Executive acting alone can not do so and has not made the attempt to perform such unauthorized function. The doctrine discussed in the foregoing report-that Congress in legislating for territory outside of the boundaries of the several States of the Union is not bound by the limitations imposed by the Constitution-was approved by the Secretary of War and adopted by the several branches of the executive department, and received the sanction of the legislative department by the enactment of the Foraker Act providing a civil government for Porto Rico (31 Stat. L., 77), which act was approved by the President and sustained by the Supreme Court of the United States in the insular cases (182 U. S. 1-498). The doctrine was elaborately discussed during the second session of the Fifty-sixth Congress (Cong. Record, 2d sess. 56th Cong.), and became a political issue in the Presidential campaign of 1900. The Republican party declared for the correctness of the doctrine; the Democratic, and People's Independent parties declared in opposition thereto. At the ensuing election the Republicans secured a majority of the popular vote and elected a majority in the Electoral College and in Congress. 121 INCIDENTS IN THE HISTORY OF THE UNITED STATES INVOLVING THE DOCTRINE THAT THE CONSTITUTION ANL LAWS OF THE UNITED STATES EXTEND, EX PROPRIO VIGORE, OVER NEWLY ACQUIRED TERRITORY UPON THE ACQUISITION BEING COMPLETED. [Sul)lni t t ed b S } 2er 2 9, 19i00.] SIR: Onl Feb)ruary 12, 1), I sutl)lllitted for your consideration a report on the status of the insular possessions of tlhe United States, containing a review of tlhe treatment acc(orded by the judicial })ranch of this Government to the doctrinel of extension of the Constitution and laws of tlhe United States, c;,' po)'v/o /v,/o,. ove(r newly acqullired territory upon the acquisitioln being' conl)leted. In further compliance with youlr reqluest I have tlhe ihonor to subllit a sul)plemllental report respectiong the treatnlllelt l(lretofore accorded said doctrine by the legislativec ald administrativ-e b}ratichles of tlle Government of the United States, as shown by certain illl)il'ta'nt incidents of our lnational history. While it lltmust )e a(dmitted thlat leg'islative prece(dent, departmnental practice, or Execuitive action are without tlhe b)indling force of judi(cial determination, yet the United States SIupreme Court a(lllonishes uls as follows: Tlhe construction placed upoli t}le (Constitution iyt tle fitrstt act f 1790, and the act of 1S02, by' tle men wh1o were c(itilemporary with its formation, mitaliy of whotil were mlellelllcrs of tlie conv\entionI tliat flall( it, is of it lf itl tleil to very great weight, and when it is rememiilcrel tlhat thli riiglits thls estatl lislhedl Ihavv not b)een disputed durinig a period of nearly a ('centurv, it is alimost conctlusive. ( Burrow-G(iles Lith. Co. r. Saroneey, 111 t. S., 5., 57.) The plracttical collstructio)n,of tlie ('onsttitutiio, as (iven )y )so 11anyi acts of Congress and embira('ingr al(-)ost thle entire periold of our natiotial existence, sihould not be overruled unless ullso a conviction tllat such legislation wass clearly inc(mipatible witil thie stulreiie law if the land. (Field r. Clark, 143 1. S.,, 64 91, and authorities there citd. ) The first incident to which attention is directed is that presented by the debates in Cong'ress ensuingi upon the Louisiana purchase treaty l)einil comllmunica.ted to that )od(ly, which incident may be termled very apl)ropriately, "The charge of illl)erialism I preferred against Tholmas Je fierson." This charge was preferred against Jefferson by the opponents of his course in acquiring Louisiana and was pressed witli e(ual vehemence by members of his own party and his political opponents. The antiexpansionists of those days were certain that the course pursued by Jefferson, Madison, and Monroe in securing Louisiana had violated the Constitution, perverted the principles on which this Government is founded, destroyed the rights of man, and imperiled the continued existence of the Republic. They exhibited quite as much alarm as do the antiexpansionists of to-day. 122 The cry of imp)1erialismn raised against Jefferson was based upon the charge that by the treaty of puirchase he had attempted to incorporate Louisiana into the ULnited States anid to confer upoii Louisiana and its irriantswithout the aid anid (consent of Conore~s tervts; privileg~es, anid benefits created and giiaranteedl I y the Constitution. Ini those (lavs evervybody concedlCd thtat the 1President and Senate could not incorporate foreign territory into the U-nited States by can exercise of the treaty-making power any more thani he, could transf.er. 'one of the Stlates to a foreign power by agreeing to a treatv containing such stipulation. Neither could the President and Senate confer upon indlividuals the rig-ht to participate in thi~s Government anid exercise the powers of ci tizenship. it was universally hlcd that if these, things could be done tat all they must be(, acconmplished 1y legislation; that thle leg-islative pow~ers mns't lie invoked, andir the, House of Repre-sentatives and the Senate must exercise their legislative functions in reg~ard theieto. That the 1President, acting- with the adlvice of the, Senate, and exercising only the authority to mnake treaties, should be able to accomiplish. this result, was declared to lbe albsurd anid a usurpation of authority lpossessedl lw king-s and kings' councils, but not vested in the, President and Senate of the tUnited States. The tetfor the, purchase, of Louisi'ana was assailed ats an act (if imperiali~sm hvecauise it lidl not contain the reservations found in the. late treatyv of p~eae wvith Spain, andl the Jefferson Administration was assailed as inmperialistic lecause it was allegedI t~o have attempted to do what the MceKinmlev Adlministra~tion refused to do. Jellersonl relielle'd the chargeC by Show~ing that hle was puJr1suting the couirse, which4 wvas sulbsequlentlv followved bythe McKinley Administr-ation. In ~Jefflerson's (lay the charge of im perialisin wtas one to conjure with. ~Jeflerson had tused it ap,-ainmst his opponents and did not relish its ap~plication to himself. That ~Jefferson wvas a.n exlpansionist adnits of no denial. His great.est g-lory was derived from the (acqluisition of Louisiana and his g-reatest humiliation resulted from his failure to sec-ure \\est Florida. Whenl Jetl erson wvas the American minister ait P~aris inl IT78f, he grave expression to his viewvs onl the future policy of the tUnited State's -as to expansion, tas followvs: Our confederacy iutust lbe viewed1 as the ioest, fromt which all America, North and Sotis to lbe 1)eople(l. We should take, (are, too, not to thinik it for th inteeto thanst great continenit to press too) s50011 ((1 the spaniards,. Thes:e countries cai.s.ot lbe inbietter hanmls. Mv.1\feaIr is tha-,t thieNare too fe~ebleltoli01(1 thieio till outrl1)opnilatioii can be s:ufficientlv advanicedl to gain it. from them piece 1oy piece Thme navigation. of the -Mississippi We mu11st have. This is allI we are, as vet, readlv to receive. (Writings of Jeffersoni, edited bv 1-1. A. Washington, vol. 1, pp 517-518.) 123 At no time ill our history were the people alltl pul)lic lnmen of our (o.,iitry better infoirmed as to the provisions and purploses of the Coiistitution an(l the fundamilletal principles and theories of our G(overnmient than in 180(), when tlhe tlrety for the purchase of Lollisi:naii w.as entered into; for the Constitution had b1(een rec'ently folrulalll ted land adlopted, and its every line exhaustive-ly discussed ( tlllhroughoul t the country. T-he samlle is true of our foreilgn rehltions. 1The1 occupieid ai lar 1 cr segment in tlhe publlic eye than tley have( il recent years. 'Te (ea lier 'Presidelnts w(ere all sele(cted from( men (wlho had secuttred distinction in the field of (liplolmacy. Nor was there in 1803 Can lack of information as to the procedu re to l)e followed il conveyingl the jls pu1b/;(c' of 1and to tlie Fe(deral Governlent. At the tilme the (onstitution was ad(lpted( many of the orio'inal thirteen States owned unoccupied lands. Slubsequently said lands were ce(ded to the IFederal Government. The cessions were made as follows: New York, 1781 Vigi 1878: VirginiaMalssachutsetts, 1785; Connecticut. 178; South Carolina. 1787: North Carolilna. 17 90; Georgia, 1802. The sovereign State whlich( had been thle owner of the territory having consented to toel t ransfer of title, the consent to receive title by the sovereign people of the United States \was secureld by 1an act of Congress, 1passed }b the exercise of the sovereign lpower of le(gislation vesteod in Congress by the people. Iby whic h act the territory lbecame incorporated into the public domain )(elong(ing to the 1Federal Government. (1 U. S. Stats., chap. 6. pp. 1 ( l-10-.) When tlie Louiisitana trealty was received in Washilngton. Conglress was not ill session. Fearing coml)lications with Spain, it was contemplated k eepingl secret the existence of tlie treaty until ((Congress should lmeett il reglla'r session. lBut fears arose that Napoleon mio ilt change his mind re.'ard(lingl t}l(' sale,, and thereupon tlie Pr'esideni t convened C(ongress,: in extraordi'mar' session on October 17. 1803. In his mnessage to Congrelss and Iwith reference to tile 1urchase and treaty. Jetfflers(,0on:ai(l: * * * tile lirol)prty all(l sovereignty of all I,-ouisiall whicl lhas },(bee rcstored to thenm [the -Frecllc] luave on certain conditions been transferred to thle United States b)y ilnstruments )earing (late the.30ti of Aipril last. When1 these shCll l1:ve receive(d t}le constitutional sanction of thle Senate,, they will without delay lbe (omimunicate(l to t le epreslentatives al o for tile exercise of their functions sto t tlose conditions -which are within the lpow rs vested 1by the Constitution in Congress. * * * * * * * With thle wis(lonl if (Conlress it will rest to take thlose ulterior mleasures which may be necessary for tlhe ilmelllciate occupation anii templorary governmienlt of the country; for' its. ii.ceo](trtioi. inito our lun iom; for rendering tlhe change of government a blessing to oulr newly adopIted blretlhren; for securing to them tlle rights of consicience and of property; for confirming to the Indian inhabitants their occupancy and self 124 government, estatblis-hi finliy andI conimercial relations with them, andl for ascertaimngn thie gorpyof the country aqie.(Asag a Papers of the Presidents, vol. 1, p). 858. Trhe proposed treaty was on the slame day sent to the Senate with a special iuessage, addressed to that b)ody simply calling attention to w\\ha-t had lbeeii said1 in the messagre to 1)0th Douses. (Messages and 1 ajpers of the Presidents, vol. 1, p. 3(62.) The Senate, rcatified the treaty, and thereafter antid on October 21I, 1s03, 1resitleiit Jefferson sent a message to both Houses of Congress, in which hie said: In inv coiiinunicatiori to you of the 17th instant I informed you that conventions 1101( 1wl~en eintercdl into with the Go0vernmnent of France for the ces-sion of Louisiana to the l'inte~l States_ These, with the advice andl consent of the Senate, having now been ratifiol. and mv ratification exclian-redlfor that of the First Consul of Fiance in duie, f rin, they are communicated to you for (oO.(idlrPttionl ii) your lcelisloto'e (upacity. Yomi will. l)hscrve that somie imnlportant con(iitioins (an miot 1)0 carricel into execution li-ut. with I he aidl of the Legrisl~-ature, 011(1 that timie presses a (lecision on them with)out delay. The ulterior pro7vi.sions, 015)) suggeste(l in the same communication, for the occuplationian governmient of the country wvill ('allfrealateio (Nes sages4 ainl Papers of the Presidents,~, -vol. 1, pp). 8"62, 868.) Randolp.h, of Virginia, presented the following resolution. wNhich was refeorred t~o the' Committee of the Whole house,: Rlesolred, That, provision ought, to be mina(le f)r carrying into effect the treaty and con~veintioin conchi(le(l at Par'is on the 8'0th day, of A~pril, 1808, between the lImIited States of Aillerica andl the IFreinch Republic. (Annals of Congress, 1808, p). 432.) Tlhe opposition assailed the treaty as being unconstitutional. because of time, prov-isions of articles 3 cand 7. Article 8 was as follows: Am'. 8. The inhabitants,, of the ceded - territory shall 1)e ineorporatedl iii the U"nion of the" initedI States, and adlinittedl as s0011 as possib~le, according t~o thme p~rinciples of 'thme Floleral Constitution, to the enjoyment of all the rights-, advantages, andl iminunities of citizeins of the U1nitedI States; aind in the nieantiine they shmall be maintained andl protectedl in the free enjoymnent of their liberty, prop~erty, and the religion which they professor. Mr. G. Griswold, of New York, oe dfrth op sition byv an attack on this article. From time report of his address in the Annals of Congress the following selections are quloted: Here, then, is a conipact between the French Government and that of the United States to adImit to citizens-hil) persons out of the jurisdiction of the U-nited States as it 110w is and to admnit territory out of the- United States to be incorporatedl into the Union. Il e did not find in the Constitution such power vested in the President and Senate. * * * Mir. GI. was of opinion that no such power was delegatedl to any department of the Government; but if such power was delegated to any department, it must be the Legislature.*** But if the right of extending our territory be given by the Constitution, its exercise is vested in the legislativ~e branches of the G~overnment. ***He contended, therefore, that the power to incorporate new territory, ***if it (lid exist, belonged to the Legislature and not the Executive, to incorporate it into the Union. If this were the case, 'it wras the dutty of the h1ouse to resist the usurped power exercised by the Executive. (Annals of Congress, 1803, pp. 432-4A33.) 125 Mr. Thatcher, of Massachusetts, said: The confederati.ol under whicll we now live is a partnership of States, and it is not colmpeteiit to adllnit a new partner but with the consent of all the partners. If such power exists, it does not resi(le in the Presidlent anii Senate. The Constitution says new States mlay ble a(liditted 1) Congress. If this article of the Constitution autlhorizes the exercise of power under the treaty, it nimst 'eside iith the Legisl(ttr c nel niot 'with the President tadt Sen-te. (Annals of Congress, 1S03, 1Spp. 454-455.) Mr. R1. Griswold, of Connecticut, said: It is perhaps somewhat difficult to ascertain the precise effect w-lich it was intelnledl to give tlhe words which hlave leen used in tllis stipullation. It is, however, clear tlat it was intelnded to incorporate thle inhabitants of the cedr ed terrlitory into tie l'liion by tle treaty itself, or to pledlge tile faitll of tlle nation that such an incorormition shouldl ake place witilin a reaso()nale time. It is )pro)er, therefore, to consider the question with a reference to lotl constructions. It is in my o)linion scarcely possiI)le for any gentleman on this floor t(. advance an opinion that thle President and Senate may add to tlhe nlemlllers f tlie U nio)n by treaty whlenever they please-or, il the words of tilis treaty, may " icorl)orate in the Union of the United States" a foreign nation who, from interest or amllbition, may wish to become a mnelller of our (overnment. Such a power Nwouil be directly re)ugnant to the original colmpiact 1wetween the States, and a violation of tlhe,rinciples on which that compact was formed. It has been already well (observed( tlhat tile Uniion of the States was formed on tile principle of a cop(artnl(rsllp, alnl it wmoill )e absurd( to sull)pose that tlhe agents of the parties who have beei alllointed to exe(cute tle bulsiness of tlie comlpact in belialf of the l)rincip)als cmuld admit a lnew particer without tile co(isent of thle parties themselves. A;1i( yet if thle first constructi(, o i.i assumed(, suc(l Imust be thie case une(r tilis Clnstitutionl, land( tlt' Pre(sident and( S'enate may a(lmit at will any foreign nation into tlis copartnerslii1) wiitlout the c(',sent of the States. Tlie (Governllent of tlis country is fortmed by a uliol (1o States, anll tleC peop)le have declare(l that the Constitution \was estal)lisie(l "'to forml a more 1)erfe(' t union of the United States." The United States lhere Iientioined cani no1 t 1e mIlistaken. They vwere te States then in existence, and such otilier new States as s1(loul) l be formedo, within thle then limliits of tlhe Union, c)nform) a)l to tlhe Irovisions of tlhe Colnstitution. Every iieasure, therefore, which ten(ls to infringe thle perfect unioIn of tlle States herein described is a violation of the first sentimetlt expressed in tlie Constitution. The incorporation of a foreign nation into( tile Union, so far froml temililg to preserve the Union, is a (lirect inroad upon it. It (lestroys the perfect union contellplated between tlhe original parties by interposing tnl alien andl a stranger tio share the pow ers of governmelnt with them. The (overnment of the United States was not formed for thle purpose of distril)uting its l)rinciI)les and advantages to foreign nations. It was formled with the sole view of securing tlhose blessings to ourselves anol our posterity. It follows from thlese princilles that n1o power can reside in any public functionary to contract any engagement, or to pursue any measure which shall change thle union of tlhe States. Nor was it necessary that any restrictive clause should have been inserted in tlhe Constitution to restrain the public agents fromi exercising tlese extraordinary powers, because the restriction grows out of the nature of the Government. Tile President, with the advice of the Senate, has undoubtedly the right to form treaties; lbut in exercising these powers he can not barter away the Constitution or the rights of particular States. It is easy to conceive that it must have been considereol very important by the original parties to the Constitution that the limits of the United States should not be extended. The Government having been formed by a union of 126 States, it is supposable that the fear of an undue or preponderating influence in certain parts of thlis Union must have hla(l great weighlt in thei miinds of those who might apprelhend that such an influence might ultimately injure the interests of the States to which they belonged; and although they mlight consent to ibec(ome parties to the Union, as it was then formed, it is highly pro)bahly that they wouldl never have consented to such a connection if a new -world was to be thrown into the scale to weigh down the influence wh-iich tlle mlliglt otherwise possess in the national councils. From, this view of the subject I have l:een persuade(l that the framers of tlhe ('onstitution never intelldedl that a power should resi(le in the 'resident and Senate to fornm a treaty by which a foreign nation and p)eople slhall be incor)porate(l into the Unioni, anl( that this treaty, so far as it stipulates for such an ill(nc(roration, is v(ild. -** * * *,2 _ * A; new territory and new subjects may undoubtedly be ol)tained lb conqcuest andt by piurchase; but neither the conquest nor tlle purchase call inc.orporate thenm into thle Ul.nion. They must remllai il tlhe condition of colonies,, and be governed a.ccordlingly. (Annals (of Colng-ress, 1 803, pp. 461-462.) In responlse to tlis assault, the supporters of Presiden(t Jefferson's Ad(iniistration cheerfully and fully admitted that the 1President land Senate could not incolrporate foreign territory into the I[nited States, nor confer citizenship and the right to participate in the (Governii ent of the United States uplon the inhablitants of Louisiana:; nor coutld the 'Presi(dlent ant(l Senate confer tile p1rivieges:ta(l ilim unities, tile Ioliti-al rigohts anld )powxers created by the Constitution, )upon the territorl or its inhablitants. Iltt they insisted that the Presilent and Senate had not attemplted to do these things,: and tli rattification of( the treaty dild nlot acco(Ipllisli them. Mr. Randolph, of Virgiinia, replying to fMr. Griswold, of New York, sai(ld: (ranting that thle United States are lnot destitute of capacity to acquire territory, lie ((;riswol(l) denlies tht tli s acquisiti, o lhas been malde i a regll ar way. (ongress, sa!ys lie, alonei is completent to perforll such an act. In this transactionl ie scelnts at a distance E.xecutive encroaclmelnllt, aii(l e are called upo(-n to assert our rihllts andl to repel it. If alny usurpation of tlie privileges of (ongress or of this ( louse be mllade to appear I pledge lmyself to join him in resisting it. But let us inqulire iinto tile fact. No gentleman w\ill dCeny tile rig'it of tilt Presidelnt. to initiate business here by mlessage, recoimnrlen(ing particular sul)jectrto our attention. If the (Governmllent of tlie tluiteol States possess the constitutional po\wer to acquire territory from foreign states tile Executive, as the organ by which vwe commiilunica te witll such states, must b)e tlhe primle agent in negortiating such an acq(uisition. Conceding, then, that the lpower of contirting this act tanl annexing to the United( States tile territory thlus ac('(lired ultimlatel rests with Congress, -where hlas been tile invasion of tile privileges of that bo(l? Does not the President of tle lUnited States submit tills subject to Congress for tlleir sanction? I)oes lie inot recognize tile princille, whlich I trust we will never give 1ul, that 1o treaty is binding until we Iass tile laws for executing it; tllat tile powers conferred by thle Constituti(on on Congress (cain inot b}e imodified or abridged byN any treaty Iwhatever; tllat the sul)jects of wnhich they have cognizance ca n not obe taken in anl way out of tlheir jurisdliction? In tils I)rocedlure lnothling is to be seen but a respect on the part of the Executive for our rigllts-a recognlitiolm of a discretion on our part to accord or refuse our sanction. Where, theil, is tlte violation of our rights? As to the initiative in a matter like this, it ic('cess-ilrilv dlevolved on tlhe Executive. (Annals of Congress, 1803, ppl. 436-437.) 127 Mr. Nicholson, of Maryluand, replying' to Mr. Griswold, of Connecticut, said: With that gentlemian I am unw illil, t s t h e Constitution ait (Itfianice. I trust we shall maintain it in all its vigor. Tle third( article o(f tle treat!, }he says, (,itlier adlmits the ced(e(l territory into tlie Unionl imllleliately or pled(ges us to d(i it hereafter. It can not )e contendedl tlat the territory i is ipo facto a(dlllittdl, llt tlle objectioli is that tile Presidlelt andl Seiiate have no rigllt to, leldge' tlie{ (;overllllment for anything nt imlinedtiately within tileir (-wn ls( wers. This ojectilon i-s,ot sidlid. (AnIals of Congress, 180.3, p. 469.) MAI. Mitchell, of New York,. 1epling to his c(,lleCag'ue, Il.. (. (riswold, said: But the grentleman froim Connecticut, I r. Clhairmall (i'r. (;riswobl), conlten(ls tlat even if Awe had a right to purchase s()il, w'e ]lave nio Imsilness witi tlie irilhal)itaits. His wo-( ls, however, are very select; for lie said, andi oftcii repeated it, tllat tlhe treat!-makin po)wer li(l n(ot extend to tlhe adllissioill (f foreig nalti()ols illto tllis confedera'y. To this it may l)e repllied that tlue Plresidel(ult an(l Senate have ioIt attempte(l to a(mllit foreign nati)ons i' o() o(r ('(i:fed( ral('. TlIev hlave 1)( mit a tract of laIld, out of their regard to( tlie good (f iour )pe(ople a1il tlheir welfare. A.\n tills lan(I ()Cnress are (caled(l lupl)( to tpay for. Unfortunately foir tle bargain, tlis region co(itaiin civilized( and Cliristiai inhllabitants; an( tl 'ir (xisten(e tlhr(, it is all(redl, nullifies tlie treaty. * * *X- * * * - In tlhe case of ]Louisiana lno illjury is (lolie, eitlier to tlie Iiatioil o( to aa;v State belhmging t) tlhat great 1(1dvy p ilitic. Ther(e was iiithiilg c((lioipulilsory upl)ol tlie iniihaitaits o-f Louisiana to I)make themll stay al(l lsubmllit to (),r (;, verlli)eixt. lit if ti(-y ('(chose to remai.i it lia(l 1)ec( most kil(l1v al)(1 wisely pro)vidlei(l tlhat ultil thley shioul(l be ladm(itte(l to thle riglits, adtvantages, ailll illmulllit is ()f citiz(lls ()f the( Inlited States they shlall be iiiaintaieii ae(l Iii prtecte(l ii tll' eijiijoymlt ()f tlieir liberty, property, an Ili the relii(-) ic thile lprolifess. \VWlat w(inll tle genltleiiai l)prpo()se tlhat we shall (ho witth tlilen? Sel(l tieil away 1() thl(' Spanish )pr(vi'es, (or turn them l)oose in the wiAilerness?' No, sir; it, is o(lr I)rp'l)(se to() pursue a imuch m(' re( (lihgnuiti'ed syst(eii (f mieasurcs. It is iiit(elll(ded, first, to) cxtel( to ttiis ic\-l V acquiiire(l 1eople the 1)lessings f law aiid social o(rd(r. To protect tihem froiII rapacity, 'violiice, andl ana.rclliv. To make theiii secu(re i:n their lives, li;ii), an 1p()l)perty, repultatitoi, an(l civil privileges. T(.) make thell safe iii tle rilghts ()f coiiscieiice. Inl tlis wax they are to be traiined u1 in a knowled(ge (f our (iw laws 1- (l institutio)ns. Tl(Iey are thius to serve an apprenticeship to liberty; they are to be t:lraught tll lessonls o(f free1dom; anll 1)y degrees they are to lbe raised t( th tle enlljoyml( t an1 practice (f indepenlence. All this is to be (l(doe aKs soon as posissi.)le; tliat is, as soon as t}l nature of tile case will permit, anll ac(cordiing to t ll' llerinlcil)les (f til(' Fedelral Constitution. Strange that. pIroeedings declare(l o1 tihe face ()of themll t) be cl)lstituti()nal sil()uld( be invleighe(l against as violatins of tle Constitution! Secon(lly, after tley slhall have been a sufficient length of tiiiie ill tlis probationary c(oll(lition thley slhall, as soon as the priniciples of the Constitution p)ermit, alil (ci'nfo)rmablnly thereto, b)e declared citizens of tlhe lUnited States. Congress will ju(lge (f thle time, ilanller, anl exle(liency of tlis. The act we are n)ow a)ibout t.o perforii wvill not confer (on them this elevate(l character. They will thereby gain no at(ldission inlt) this IIo)se, nor into thie otler Ilouse of Collress. There will be nio alien iiiltuence therel)y iitrodulce(l into )our colncils. By (legrees, howeveer, theVy will pIass on from thle childhood of republicanisni, tlro ugh thle ilill)ro ving perio(h of youtlh, anil arrive at the mature experience (f manhloo(l. And then they may be admitted to thle full privileges which 128 their mierit anld stationl w\ill entitle thlem to. At that time a general law of naturalization miay be passed. For I (lo not venture to affirmii that, by the mere act of cession, the inhalitants of a celded country becolme, of course, citizelis of the country to which. they are annexed. It seems not to lbe the case, unless specially provided for. By the third article it is stipulated that tle inhabitants of Louisiana shall hereafter be made citizens; ergo, they are not mlade citizens of the Inlited States by mere operation of treaty: **-,* ** * * In the treaty respecting Louisiana there is lhappily no cause for alarm. This power of making citizens hlas not l)een exercise(d!b the President and Senate, lut at a future day nmay b}e use(l i)- Congress. (;Annals of C(ongress, 1803, pp. 479, 480, 481.) In closing' the ldebate Mr. Ratndolpll. of Virginia, is reported as follows: When lie spoke of their acquiring tlie riglhts of citizens lie did not mean in the full extent in which they were enjoyedl by citizens of any one of tlle Iarticular States, siic, thu!/ ]ivxs)se.scd l,,,t 1h1' ri. if t of 9slf-goi'ertilt'iit,, but those rights (f lpersonal lilbertv, of personal security, anl(i (f property, whiich were amion, thle dearest privileges of our citizens. Annals of Congress, 1803, p. 4S6. In. Jefferson's time no one blelieved that the President and Senate could extend the boundaries of the United States )b treaty stipulations, or incorporate foreign territory into the United States, which is the same tlhing. Therefore the oplponents of his Adninistration were eager to convict him of attempting to do so. Thie people understood thoroughlyl that additions to the realml and the privilege of participating in the (Go-verlnllent were mllatters to ble deternined by) the sovereign, and that in the LUited States the sovereiogn was the people and not the P1resident or the Senate. In Europe the king was sovereign, and therefore could do 'as the liked. or a1s his militarv forces enabled hlim to do. A king could extend his kingdom to the four corners of the earth if he h'ad the requisite military force, and having conquered a province lie could allow the conquered inhab}itants to participate in his government as ltmuch or as little as lie saw fit. But this great power of the soverign was vested, untder our forml of government, in the people, and not in the Chief Executive nor the Commander in Chief of the Army and Navy. To permit the exercise of this power by a military officer, of however high degree, is to establish " militarism" in its worst and most obnoxious form. The most a President could do by treaty stipulations, or a military commander could do by conquest, was to give the sovereign people an opportunity to say what should be done with territory and its inhabitants. The will of the sovereign people in regard thereto was to be declared by the legislative department of the Government. It was this difference between the President of the United States and the King of England to which the Supreme Court of the United States referred when, in speaking of the effect of the conquest of Mexico by the United States, it said: 129 In the dlistribution of political power bletween the great departments of this Government there is such a wide difference between the power conferred on the President of the United States and the authority an(1 sovereignty which belong to the English Crown that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest ill war or in any other subject where the rights and powers of the executive arm of the Government are brought in question. (Fleming?. Page, 9 HIow., 618.) So clearly did the public comprehend that the President could not exercise this prerogative of an al)solute Ionlarch, that had he attempted it, the effort would have terminated his public career. Hence the effort to attach the odium to Jefferson. The opponents of Jefferson failed because article 3 of the Louisiana treaty did not permit the construction they gave it. Had said article read (as does the late treaty with Spain)The civil rights and political status of tile native inhabitants of tlme territories herel)b cededt to the IUnited States shall lbe letelrminedl 1)y the Congress, the attack on Jefferson \wouldl have been ridiculous as well as ineffective. Mr. Elliott, of Vermont, in closing his address in sup.port of Jeffersoln and the Louisiana treat!y sarcastically referred to the attack (as follows: The friends of tle present Adml-inistration c(an beloldl, witih (motionls,oly of pity lmixed witll contempt, tlle innumerable little muddIl, mlurmuril rills of faction, folly, amn slamler, whicll, like spots ulpon, tlle or1 of (day, are scatteredl upon tlie fair scenery of our far-extendel country. BHut they are compelled to listen, with a loftiness of feelig bordlering ol subllimity aind it unimingledl witll terror, to tlme awful roariii of thlat tre mend(ous torrelit (,f ol)position elolquellce whlicl resomnd(ls within these walls, thulnders around tlhe Capitol, terrifies tlli Administrati:n, and m]akes even the Relpublicanl system itself trembl}e to its (enter. (Annlals of Collress, 1S03, p. 43. ) A week later (Novembler 2, 1803), when the sulbject was discussed in the Senate. tlhe attack on the President, based on article 3 of the treaty, was not pressed. The Senate, having participated( in the ratification, was not inclined to assail its owni action. Senator Nicholas, of Virginia, said: If tlle thiir article of the treaty is an engagement to incorporate tlle Territory of Louisiana into thle Vnion of the 'llited States, adl to make it a State, it can not be considered as an unconslltitutional exercise of the treaty-mlaking lower; for it will not I}e asserted by any ratiornal man thlat the Territory is incorporated as a State by the treaty itself. (Annals of Congress, 1803, pp. 70-71.) Senator Tracy, of Connecticut, called attention to the difference b}etween the treaty-making powers possessed lby the President and Senate of the United States and those possessed by European mnonarchs. He said: The obvious meaning of this article is, that the inhabitants of Louisiana are incorporated by it iiito the Union upon tile same footing tliat the Territorial governments are, arlnd, like them, the Territory, w-hen the population is sufficiently numerous, must be admitted as a State, with every right of any other State. 1394-03 9 130 Have the President and Senate a constitutional right to (lo all this? When we ad(vert to the Constitution we shall find that the President, by and with the advice and consent of the Senate, Imay make treaties. Now, say gentlemen, this power is undefined, and one gentleman says it is unlimited. True, there is no definition in words of the extent and nature of the treaty-making power. Two modes of ascertaining its extent ha've been mentioned; one is by ascertaining the extent of the same power among the monarchs of Europe and making that the standard of the treaty-making power here, and the other is to limit the power of the President and Senate in respect to treaties by the Constitution and the nature and principles of our Government. Upon the first criterion it is obvious that we can not obtain any satisfactory definition for the treaty-making power, as applicable to our Government. It is well known that in Europe any part of a country may be ceded by treaty, and the transfer is considered valid, without the consent of the inhabitants of the part thus transferred. Will it be said that the President and Senate can transfer Connecticut by treaty to France or to any other country? I know that a nation may be in war, and reduced to such necessitous circumstances as that giving up a part or half the territory to save the remainder mnay be inevitable. The United States may be in this condition, but necessity knows no law nor constitution either. Such a case might be the result of extreme necessity, but it would never make it constitutional. It is a state of things which can not, in its own nature, be governed by law or constitution. But if the President and Senate should, in ordinary peaceable times, transfer Connecticut against her consent, would the Government be bound to make laws to carry such a treaty into effect? Such a transfer of territory can certainly be made by the monarchs in Europe, under the head of the treaty-making power. I am (onvinced, sir, that only a cursory view of this subject will be sufficient to show every reasonable man that the treaty-making p)ower in the United States can not be the same that it is in the European governments. (Annals of Congress, 1803, pp. 54-55.) The men who fought to secure the independence of our country from monarchial institutions, who wrested sovereignty from a king and vested it in the people, who formed and adopted our Constitution, who laid the foundations of our Government, and worked out the principles on which it is established, placed a high value on the work they had performed. They believed that the great l)olitical powers, rights, and privileges which the Constitution created and conferred, were of priceless value, well worth the struggle by which they were secured, and were not to be hawked about the earth to be plucked by every man or nation whose interest or ambition might be advanced thereby. They were not the common property. of mankind. They were the product and heritage of Americans, and to be kept as such. The man who undertook to cheapen them or bestow them on unworthy persons, laid impious hands upon the Ark and Covenant of our liberties, and his political standing was the forfeit of his sacrilege. The outcome of the debate on the treaty in the Committee of the Whole House was a report to the House recommending the enactment of measures for the payment of the purchase price; to authorize the President to take possession of the territory and establish and maintain therein the sovereignty of the United States; and, as it was anticipated that the French and Spanish inhabitants would resist the new 131 sovereignty, the President was authorized to use the Arny, the Navy, and the militia, then numbering eighty thousand, to enforce t and plotect that sovereignty in Louisiana; also to provide a form of goverlnment for the territory and inhabitants. (Annals of Congress. 1803, p. 488.) The House appointed a special commlittee, with Jolhn Randolph as chairman, which immediately reported a bill emanatinig' f rom the P1resident. (Adams's History, vol. 2, p. 119.) The bill provided that: all the military, civil, and judicial p)owers exercisel by the officers (f the existing government of the same shall l}e vested in such perso and persons, a on shall be exercised in such manner, as tie President of thle United States shall direct. (2 U. S. Stat. L., ). 245.) The '"existing government" in that territory lat that time was the one established by Spain, it having been continued ly) Fi'rance. The effect and purpose of this law was to substitute Jeffelrsonl for the King of Spain and authorize him to exercise royal powers. Mr. Rodney, of Delaware, speaking for the administration, explained the theory on which was founded the government 1proposed by the bill by declaring that: Congress have a power in tlhe territories which they can not exercise in tle States, and that the limitations of power found in tlhe Constitution are aIpplica})le to States and not Territories. (Annals of Congress,:18)3, p. 514.) Randolph defended the bill on the ground of necessity, and leclaredl that the United States possessed unllimited powers of sovereinty in Louisiana, saying: They (Congress) will see tlhe necessity of tlhe Unite(l States takiig possession of this country in the capacity of sovereigns in tlie same extent as tlat of thel existing government of the province. (Annals of Congress, 1803, p. 514.) rJefferson's fiercest foe in Congress (or out of it for that hmatter) was Senator Pickering, of Massachusetts, who olpposed tlie treaty, but declared that heHad never doul)ted the right of the United States to ac(luire new territory either by purchase or by collnuest, anll to govern tlle territory so acquired as a dlependent province; and in this way nitght Louisiana have become territory of tlhe United States, and have received a form of governmnent infinitely preferable to that to which its inhabitants are now subject. (Annals of Congress, 1803, 1. 45.) The bill passed b}y a party vote and was signed by,Jefferson, )ctober 31, 1803. This law was a temporary measure. Four weeks later the Senate appointed a committee to prepare a bill for territorial government of Louisiana. The committee was composed of Breckenridge, of Kentucky, Jackson and Baldwin, of Georgia, and John Quincy Adams, of Massachusetts; and they reported a bill that definitely determined the principle on which the new territory was to be governed. (Adanms says this bill "wvas probably drawn by Madison in cooperation with 132 the President." Adams's History, vol. 2, p. 121.) The bill provided for a territorial government in which the people of Louisiana had no share. It set the new territory apart, as a peculiar estate, to be governeld by a power implied from the right to acquire it. The bill provided for a governor and secretary, to be appointed by the President. The legislative power was to be exercised by the governor and a legislative council of thirteen, appointed annually by the President. The laws were to be reported to the President, and, if disapproved by Congress, were to be of no force. There was a further restriction that " no law shall be valid which is inconsistent with the Constitution." The bill gave the governor the authority to "convene and prorogue" the legislative council at his pleasure. The judicial officers were to ble appointed by the President. Trial by jury in civil cases was restricted to cases involving more than $20, and in criminal cases to those wherein the death penalty llight be imposed. The bill was considered in the Senate for six weeks, but the debate was not reported. It passed the Senate by a vote of 20 to 5. When the bill reached tlle Iouse it wa\s vigorously assailed by Illembers of both parties. The opponents of the bill did not conteind that the Constitution was in force in Loutisiana. They did lnot insist that the inhabitants of the Territory possessed thle rights, privileges, and immunities of citizenlls of the lUnited States. They did insist that bv the terms of article 3 of tlhe treaty the TUnite(d States wvas boutnd to.soine time incorporatte the Territor- and its inhabitants into the Uniol, and thereby blrin themll within tile Constitution and l)ermlit theil to participate in tlie (;overnnmlllt. They callled attenltion to the fact that the populatioli consisted of Americans. Firenchmen, Spaniards, and Creolescivilized, Chrlistianized, intelligent people-a-nd urged that it was safe and advisable to permit them to participate in the governnllent of the Telrritori to the limited extent of electingl the mellmbers of the legislative couincil and therebyv familiarize themselves with our system of self-(government. The unliImited power conferred upon the President and the authority given the governlor were denounced in unmeasured terms. Mr. Leib, of 1ennsylvanl ia, aln extreme IDemocrat, took exception to the word ''prorogue," and denounced the power of the governor to prorogtue the council as "'royal." (Annals of Congress, 1803, p. 1055.) Ir. ('reg'g', of 'Pennsylvatnia, said: lIH was opposed to the powcr it gave the l'Prsident to appoint the mneml)bers of thle leislative council. It aIppeared to hli a mere burlesque to say they shall be appointedl by the President. (Annals of Congress, 1803, p. 1055.) MrI. VarLtnum. of Massachusetts, Was of opinion that the bill provided such a kind of government as had never bleen known in the Unite(l States. Iie thought sound p)olicy, no less than justice, dictated the propriety of makimg provision for the election of a legislative body ly the people. There was n(ot only the comnmon olligation of justice imposed upon Congress 133 to do this, but they were bound by treaty. The treaty makes it obligatory on the United States to admit the inhabitants of L.ouisiana, as soon as p~ossib~le, to the enjoyment of all the rights, advantages, and immnunities of citizens of the United States. (Annals of Congress, 1803, p). 10156.) Mr. Lyoni, of Kentucky, vehemently opposed the selectioii of the legislative council bw alppointl-nent. Such a government, he declared, r'educed the inhabitants to slavery " and gave Jefferson thle pow-ers of Bonaparte. (Annals of Congress, 1803, pp. 1)059-10(30.) M.r. Campbell, of Tennessee, said of the 1)i11: It really establishes a complete (lespotismn; it (loes not evince a single trait of liibertv; it (lees not confer one single right to which they are entitled undler the tircaty; it (loes not extend to them the benefits of the Fe~leral Constitution, or leclare when, hereafter-. thev' shall receive themn. Mr. Campbell- believed that the inhabitants possessed the right to participate in the government, independent of thle Constitution. a-nd that said rioht was limited only by their- intelligence aned ability to exercise it. lie believedl the inhabitants of Louisiana wvere sutlic ictit v informled(las to the, workings of our- Government and (levoted to the pri ncipeofcvllbryt eIlwdtexri(thelciefan IX e fcvllbryt ealwdt xrieteeetv rn chise in selecting the leo-islative council. (Annals o f Co"ngest8, pp. 10638-1( (37. See, also amendment offered by Canmpbell, p). 07S.), Mr. Jackson (0111(1 not agree that the inhalbitants of Loutisiana11 we~re not (1ualifed to receive Ca free g'ov-erniment. Ie, s~aid: it is urg~ed by gentlemen that. we ought to give to this people liberty b)y 1,(je'iee, I believe, however, there, is no (danger of g\iving theme too 0auichi ()f it; tind I, am unwilling to tarnish the national character hby s~antioniii i the dIetes~table (alliliin that manfi is not fitted for freedom. What will the world s~ay if we saiictioii this jirinciple? They will see we possess; the p~rincip~le of (lespotismI under the gall )of relmhI li cans, and that we are insincere(, with whatever soleiniitv we miav (leeare itl, inl pronouncing all men equal. They will tell us, that w have elmphatically dJeclaredI to thc Americaii people and to the worl(l, in our firs4t. act ev-incive Of emancipation frIont the tyrainny of England, that all 1 11(n are equal, andl tlnit all govmernments (lerive their rightful power frola the consent of tile governed., an(l that io,twithistanding, \when the occasion offers, we exercise dlespotic power undler thie l)retext that the people are unable to g),overn themuselvyes. (A- unitals of C.ongress4, 1 0), p). 1071. Mlr. Sloan said: I was vest-erdlav abouit to rise to express myiX (isalpprohbatioli of the section now und(er cois-idleration'l, and iiiv concern on hearing senitimient~s adduceel in suiport (of its p~rincip~le, which I considier as reiugniant, to justice andl sWounel policy as frost is to tire, or darkness to light, w\\hen my friend fromt Tenness-ee (Mr. Ci. WN. Campbell) rose, an11d in so clear and1 exlllicit a manner opposed the I ill and exp~osed(1r itsujst, impolitic, dangerous, and despotic principle, that nothing applearedl necessary to be added; after which I flattered inyself iio flirt her attempts wotbld 1e made tostu1)lort a priiiciple subversive of the inalienable rights of mani, b~ut, to niv surplrise, I hear a repetition of sentimients urgedi in favor of this principle. Here let. me ask, Can anything be iiore repugnant to the p~riniciples of just. governmient; can anything be more (despotic than for a lpresidleit. to app~oilit a governior andl legislative council, the governor having a negative on all their acts, and power t~o prorogue them at pleasure? What liberty, what power is here vestedl in the people? (Annals of Congress, 1803, p. 1074.) 134 In support of the bill, Mr. Eustis, of Massachusetts, said: It. is extremely difficult to fornm any system of government for this Territory with our ileas of civil lib)ertv under the Constitution of the United States. It appears to me that before we (leterinine tlle principle on which the council is to b)e formed it is necessary distinctly to understand the genius, the manners, thle disposition, and the state of tlhe people to be governed. The treaty has been resorted to by my colleague to show that they are entitled to elect their own legislature. It says: "The inhal)itants of tlle cededl territory shall I)e incorporated in the Union of the 'nitc(l States, and ad(liitted as soon as possible, according to the principles of tlhe Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." Are thle people of Louisiana admitted at this time or not, with all the rights of citizens of the United States? Tlhe answer to this inquiry will lead to a right decision of the question under discussion. If they are so adminitted they are entitled to all tlhe rights of citizens of the United States. And if they are thus entitled there remains another inquiryv: Are they( qualified from habit and from the circumstances in which they are placed to exercise these high privileges? If they are both entitled and qualified to enjoy thell we (can have no hesitation in pronouncing the bill grounded on a wrong principle, that it ought to be rejected, and another a bill, of a far (lifferent nature, be introduced in its room. But I do not consider the subject in this light. The people, in my opinion, are at present unprepared for and undesirous of exercising the elective franchise. Thle first object of the Government is to hold the country. How? By protecting the people in all their rights, and by administering the government in such a manner as to prevent any disagreement among them, to use no other terim. Suppose thle people called upon to choose those who are to make laws for them, does the information we possess justify thle belief that this privilege would l)e so exercised as to conduce to the peace, happiness, and tranquillity of the country? I app)rehend not. * * * * * *. * The governlient. laid down in this lill is certainly a new thing in the United States; but tlle people of this country differ materially from the citizens of the United States. I speak of thle character of the leople at the present time. When they shall be better acquainted with the principles of our Government, and shall have l)ecomle desirous of participating in our privileges, it will be full time to extend to them the elective franchise. Ilave not the Ilouse l)een informed from an authentic source, since the session, tlat the lrovisions of our institutions are inaIpplical)le to then'? If so, why attempnlt, in lpursuit of a vain theory, to extend political institutions to them for whlich} they are not p)repared? I aml one of those wlo believe that the principles of civil lilerty can not su(l(lenly be ingrafted on a people ac(customed to a regimlen of a directly opposite hule. The approach of such a people to liberty must be gradual. I believe thenm at present totally unqualified to exercise it. If this ollinion be erroneous, then the principles of the bill are unfounded. If, on the contrary, this opinion is soll(nd, it. results that neither thle power given to the l'resident to appl)oint tile memilbers of the council or of tlle governor to prorogue themn are unsafe or unnecessary. The (extension of the elective franchise mnav be considered by the people of Lounisiana a burden instead of a benefit. I have understood there is none of that equality among them which exists in tlhe Unite(l States; grades are there inore highly marked, and they may deeil it rather a matter of oppression to extend to them the privileges wxhichl we deem inestimable, and witll the value of which we have been long familiar. Before we decide tlis plrinciple it. is absolutely necessary to consider the relation of these people to the lUnited States. I consider them as standing in nearly the same relation to us as if they were a conquered country. By the treaty they are, it is true, entitled to thle enjoyment of all the rights, advantages, and immunities of 135,citizens of the United States and to be incorporated iuto the Union as soon as possiide, according to the pim-iiiples of the Federal Constitution. But c-an they be a(Imitte(1 now? Are they at this moment so admitted? If not, tlhev are not. entitled to these rights; but if thley wvere 1 should dloulbt the propriety of extendIing them to them. If the present p~rovisions of the lbill are carrr~iel into effect there wvill be more security thaui will arise under the inotion of my colleaguie. It is very natural and honorable to gentlemen o)f lib.eral minds, to b~e olesirous of extendling to this lpeolple the privileges enoyo by our own citizens, lout sentiments of this kind, however liberal anod praiseworthy, may 1 e carried in the face o~f facts and may o)perate injuriouslyv on those they are intendedl to benlefit. I:pon the whole, as the bill only pourpormts, to providle for a temporary government, anl as in the course of a vear wve shall haive more informmation resp)ecting the country, when it will be in our lIower, in case such information shall jus,-.tify- it., to extend all the privileges, which gentlemen seemo so desirous o)f (oing(, T hope the commiittee will not rise or agree to strike out this section. (Annals of Congress, 180:3, pp. 1058-1059.) MI'. 1-Jolland, replying to Mr. Jackson, s4ai(1d A s my' ideas are very olifferent fromt those of the gentleman who has lprecededl me, and as 1 do not believe that either policy or moral obligation recomumnenols thme adoption. of a systein suich as hie has avowed to be Iprop~er, I will, in a few wvords, estate the,sentimients I entertain. I (10 not view this dlisculssionl as involving the question 'whether the people of Louisiana shall be admitted into tlhe United States. The only question is whether we shiall extend to themn the right of free suffrage in its fullest extent anid such as is en oedl by the peopole of the United States. (lentlemen in favor of striking out this section seem implressed with thme iolea that ev-erv gentleman friendly to the section is in favor of anl absolute (lespotisrn, is inimical to their rights, is (desirous o)f making the p~eople of Louisiana slaves. They, take the groun(1 that if we dleny them tluis right wve deny thenm everything; but. there is a wide (difference b~et ween denyi ng thenm the privilegec of election anl (extendling to them other high privileges, more, loer'haps, than they' are capable of enj(oying. This law wili extendl to theni the privileges o)f 21 acts of the United States to which the freemen of the United States, are sodhject. Is this nothinig?, Gentlemen -sax- theyought. not. to be. subjected b~ut to) laws of their own muaking, but the whole, franme of this bill contradicts the ass-ertion, as it principally consists in imposing laws wNhich the lpeople never madle or' oughylt, to participate in making. Will the gentlemian take the b)roadl ground that peolple shouldl neve~' be, governedl 1 ut 1 ov laws of their own-1 making?) This is, indeed, the amount o)f the,, argument, and~ proving too munch it. pr'oves nothing. 'Mr. If. said hie believedl the lpeolple of St. IPmningo whmo had been alluded to, not qualified to support a free goverunemu~t, not poss~essed of suifficient know-le( g e. People whlo never had. aiml01)1) otunitv to 1)bt~ain knowledge can not be sup)posed to possess it., andl no- kind of knowledge wvas more biffhcult. to ob)tain than that which qlualified men to be egatr.Can gentlemnen conceive the people of Louisiana., who have just, thrown off their chains, qualified to make laws? tmn(ler the late system the People had no concern in the Giovernment, anol it wvas even criminal for them to concern themiselves with it; they wvere set at a olistammee frommm the Giovernnment, andl all required fr( intheir hmamuds, was to 1 o passive ammo I ob)eient. C'an it lbe suplpos-ed such a peo.)ple made thle subject. of governmnent. t heirstAudlv, or' ca-n it be presummed they know anlything about th ricplsoftmeCntituition of the Uniteol States?,. W ld lpersons thus- elected be of any' service to thme Government'? So far froun being ail assistance, they would be can incuinbrance. Why, then, impose this burolen upon themi? The object of this bill is to extemud the laws of the United States over Louisiana, not to enable the 136 people of Louisiana to make laws. This extension, so far from being an act of despotismi, will be an important privilege. If the laws of the United States were founded in injustice they might have some right to complain, but we only apply to them laws by which we ourselves consent to be governed. Gentlemen say if we deny the right of self-government we deny everything. But before they are permitted to make laws ought they not to understand what law is? If we give power to the people, will they not choose persons as ignorant as themselves? It is a fact that nany of the most respectable characters in the country conceive the principle of self-government a mere bubble, and they will not consider themselves aggrieved if it is not extended to them. Does the history of nations show that all men are capable of self-government? No such tlling. It shows that none but an enlightened and virtuous people are capable of it; and if the people of Louisiana are not sufficiently enlightened, they are not yet prepared to receive it. If this be the case, the arguments of gentlemen are inconclusive. They are not prel)ared for self-government. For what are they prepared? To remain in a passive state and to receive the blessings of good laws; and receiving these, they have no reason to complain. * * -X-* * * * *When the people understand the value of laws equally and imnpartially admninistered, and begin to feel an attachment to the United States, and to inquire into the principles of free government, it will be timie enough to give them tile elective franchise. (Annals of Congress, 1803, pp. 1072-1073.) A imajority of the House refused to support the President's bill, and amended it so as to authorize the inhabitants of Louisiana to elect the mlembers of the legislative council. The Senate refused to concur, and the outcome as stated in the Annals, was: It may not be unsatisfactory here to state that the bill, as finally passed, is limited in duration to one year from thle 1st day of October next (when it is to take effect) and thence to the end of the next sessioIl of Congress. It directs the appointment by the President of a governor, to lhold his office for four years; tile appointment annually of a legislative council, conl)osedl of inhabitants of Louisiana, and the apt)ointment of judges. It will be perceived that tile princil)le of the Senate, withholding for tile present the right of suffrage from the people of Louisiana, p)revailed, subject, however, to the limitation of time intro(luced in the bill by the louse of Representatives. (Annals of Congress, 1803, p. 1230.) In 1804 Jefferson was a candidate for reelection to the Presidency. The course pursued by his Administration in the acquisition and government of Louisiana wals suilllitted to the people. Jefferson received 162 electoral votes out of 176, while in 1801 lie received but 73 out of 138. In the Ninth Congress (1S05) the opposition to Jefferson coulld uster only 7 Senators out of 34, and 25 Representatives out of 141. The extent of his triumph is thus described: From the St. Marys to the Potomac and the Ohio every electoral voice was given to Jefferson. With some surprise the public learned that Maryland gave 2 of 11 votes to C. C. Pinckney, who received also the 3 votes of Ielaware. This little State even went back on its path, repudiated CGesar A. Rodney, and returned to its favorite, Bayard, who was sent by a handsome majority to his old seat in the House of Representatives. Broken for an instant only by this slight check, the tide of Democratic triumph swept over the States of Pennsylvania, New Jersey, and Newv York, and burst upon Connecticut as though Jefferson's hope of dragging even that 137 State froin its mioorings were at length to l)e realized(. With (lifficultv the Connecticut hierarchy held its own, and with despair after the torrent passed by it looked about and found itself alone. Even MIassachusetts cast 29,31.0 votes for Jefferson, against 25,777 for l'inckney. * * * * * * * At the close of four years of adlninistrationl all Jefferson's hopes were fulfilled. Iie had annihilatedl opposition. The slanders of the Federalist press helped to show that lie was the idol of four-fiftlis of the nation. (Adanms's ITistory, vol. 2, ). 201.) 'rhe Eighth Collgress, in which occurred the two debates on ILottisiana, was composed of Federalists and State rights irien, strict (constructionists and liberal constructionists, extremists.and conservatives of both parties and schools. Yet all agreed that the newly acqtuired territory could not become incorporated into the United States or lbound and benefited by the Constitution except )by legislatirve action of Congress. As to the government of such territory little doubt was expressed as to the right of Congress to govern it as a colony. The serious doul)t atrose as to thle iight of tlie nation to ever govern it in any other way. THE CONTROVERSY BETWEEN ANDREW JACKSON, MILITARY GOVERNOR OF FLORIDA, AND JUDGE FROMENTIN, UNITED STATES JUDGE FOR THAT TERRITORY, AS TO THE CORRECTNESS OF THE DOCTRINE OF EX PROPRIO VIGORE. When tile 1llite(l States ac(lnilied East and West Florilda the Louisian'a law wts taken for a molldel Iand the (Government of Florida was the salle as had beell that of Louisiana. Monroe wtls l'resident, ald he followed Jefferson's example and acted u-pon Jeffersoni's advice. When the Floirida bill was pending' in Congress an anlendllnllt was offered povidillng as follows: That all the p)rincil)les of the 1nite(l States Constituition, for thle seculrity of civil and( religious freedloml, and for the security of proplerty, an(l the sacre(lncss of riglits to things in action; and( all thIe prohibitions to legislation, as well as with respect to Congress as the legislatures of the States, be, and thle samle are herebly declare(.l to be, applical)le to the said Territory, as l)arallolunt acts. (Alnnals of Conlg., 1st sess., 17th Cong., vol. 2, p. 1374.) This amendmellt wais voted( down. Il opposing the antendnlent Mr. Rhea, speaking for the Admninistration, said: The peop)le of Flori(la (except citizens of the United States who may have remloved there either temporarily or permanently) know little of our Constitution an(l laws; to these they are strangers. MIany principles of the Constitution of thle Tnllited States re(Juire laws of the United( States to carry them into opIeration. * * * That the Constitution of the United States shall obltain anl(l have full force andl effect in a territory not included within the bounds and limits of the territories of the old thirteen States, or either of them, but which has been acq(uired by treaty from any foreign power since the adoption of that Constitution, and that the inhabitants of such territory shall be entitled to all the rights, privileges, and immunities, sanctioned and confirmned by the Constitution to the citizens of the United States; it appears necessary and consistent with the Constitution of the U7nited States that the sovereign people ehall, by the Congress of the United States, enact laws preparatory to, and 138 declaratory of, the admission of such territory to- a )articipationl of the rights, etc., derived froml the Constitution, and afterwards to be amnlitted a State of tllis Union on the same footing as one of the original States; the people of such new State will then have their full relresentation in bloth houses of the Congress of the United States, alll then the Constitution of tle United States is in full operation in and over such nlew States as it is in one of the original States. (I1)., p. 1375.) Next atn amnendnlent was offered to authorize the people of Florida to elect their legislative council. This iamendment received only 15 votes, and was lost. (11. p. 1377.) The bill passed without amendment and was approved by 1President Monroe. The following is Benton's comment on the incident: Tills lrompt rejection of Mr. Montgomery's proposition shows what tlie Congress of 1822 thought of tlle right of Territories to the enjoyment of any part of the Constitution (if the I nited States. * * * The only question between IMr. Mhontgomery's proposition and the clause already in the bill was as to the tenure by which these rights should be held-whether un(ler the Constitution of the United States or under a law\ of Congress and the treaty of cession, and the decision was that they should be held under the law and the treaty. Thus a direct issue was made between constitutional rights oll one hand and the discretion of Congress on the other in the government of this Territory, and decide(l prom)ptly and without debate (for there was no sp)eech after that of M\[r. Ihhea on either side) against tle Constitution. It was t.!Utamounllt to tlhe express declaration: "'You shall have these principles which are in the Constitution, but not as a constitutional right nor even as a grant under the Constitution, but as a justice flowing from our discretion and as an obligation implosed by tlme treaty which transferred you to our sovereignity." (Benton's Abridgment, o., l. 2)5, 5 note.) Andrew:Jackson, then a major-general, was appointed governor of Florida under this bill and authorized by the President to exercise 'all the po()wers theretofore possessed by the Spanish governors of East and West Florida atnd in addition the powers of the captain-general of Cuba and the intendant of Culba. Jackson went to Florida and 1)roceeded to exerclise these powers in the style for which he is still famous. As a legislature he enacted many laws, somle of which were afterwards repealed by Co(ngress; as the supremne court and chancellor of the Territory lhe heard and determined many cases both at law and in e(quity, and as the chief executive or governor he extended his authority to issuing orders expelling certain inhabitants froml the Territory. Shortly after Jackson assumed control, a matter arose which squarely raised the question as to whether the Constitution followed the flag into Florida. Jackson learned that a Spanish military officer named Sousa had in his possession and refused to surrender certain documents relating to the claims of a private individual to an estate. Jackson issued an order requiring the delivery of these documents to the American authorities. Instead of conmplying with the order, Sousa consulted the commander of the Spanish forces, Colonel Callava, who instructed him to turn over the documents to the steward of the Colonel's household; which instruc 139 tion was ob)eyed. When,Jackson learned of this, he caused tie three Spanish officers to be seized and thrown into prison, searched the house of the Colonel. land folund an(ld retained the documents. This action created a sensation, and a grceat crowd of people llarched to the residence of Jtdge Frol llentin, tle United States judge of the Territory, to whom application was lad(le for a writ of /1!e(,' co7)pu.. The LUnited States judge issued the writ. When the writ was served on TJackson he refused to obley it, on tlie ground that Congress hlad not extended the Constitution and laws of the United States to Florida. He also ordered JIudgle Fromentin to appear b)efore hinl for contempt. The judge insisted that the inhall itants of Florida were entitled to the writ of /bae,. cu,,ops. by virttue of tlhe treaty which gturanteed thenm the privileges and immunities of American citizens, and also because he thought the Constitution tand laws of the-United States were in force in Florida." In reporting this to the President, Jackson says: If it be not sufficient to strike lhili from tllt r,)ll of judges, I mnust say that ignorance,f law is 1no o)bjection against anllyone's hl(,lding a judicial station. Judge Fr(,inentin was rel)resented to ime to be no lawyer, * * * l)ut I could not have forimed such an idea of his want of legal knowleldge as this transaction displays. (Annals of (Cong., 1st sss. 17th Cong., vol. 2, p. 2:100.) In the sa:me repor't,Jackson also stays: TIle lecture I gave the judge when lie caine loefore me will I trust for tlie future cause him to obey tile spirit of his colllission, ail il tle execution of tlie laws and adllinistration of the (:;overnment instead of attempting to oppose me. Judge Fr'oentin appealed tlhe contloversy to Washington. This is what he wrote to Secretary Adams: The American flag, it is true-tle flag of liberty-waves on ollur forts; a treacllerous sigll ill Florida. Sir, tlle 1ol1luo.lm,,ps tree of slavery overshad\ows us. (1,., p. 2381.) The question now to bet (lecidedl is not tile illnsillificant 11nd unipl)ortallt questioll of the difficulty letween (Tenerlll Jackson andl mI1self. It is a question o f coun(try or 110 coultry, Constitution or 110 CmstitutionI, lilbert or slavery. The despotism whicll attacks tlhe liberty of one of tle mleanest of the inhabitants of this countrv lmakes an attack Illo)n thle liberty of all. " * * I Fsleak not thiis now with reference only to t}le present occasion; but, sir, tylrants beget tyrants. Beware! (Ibid., p. 2472.) In spite of this distracted appeal President Mlonroe land his Secretary of State. John Quincy Adams, sustained Jackson. Their decision was coml unlicated to Judge Frolmenltin by at letter wherein Secretary Adams says le is (lirected )b the PresidentTo inform vyo tlhat tlte laws of the lUn ited States relaitive to tlle revenue andl its collection, alnd those relating to tlie slave trade, having lbeen the only ones extelned by act of Collnress to tIle Territories of Florida, it was to the execution only of them that your commlission as jlludge of the Unitedl States was considered anll iltellled to "For all the documents in tile case, see Folio State Papers, 2 Miscellaneous, 799. The important papers are in 21 Niles Register. For Fromentin's theory of his action, 21 Niles, 252. 140 apply. The President thought the authority of Congress alone comlpetent to extend other laws of the United States to newly acquired territory. (Annals of Cong., 1st sess., 17th Cong., vol. 2, p). 241.2.) Attentioni is called to the fact that in 1821 three Amierican statesmen,,James, Monroe,?John Quincy Adams, and Andrew Jackson, each of whom was elected President of the United States, officially declared that the Constitution and laws of the United States do not extend over newly acquired territory, ce propei~o v~qoi-,w, and that such extension, if made, must be by act of Congress. The action of the, M'onroe Administration was not taken untit after deliberate consideration. The mlatter was discussed -at thee icencetin gs of the Cabinet, and the formi of the letter was not decided upon until sever~al days thereafter-. (Memioirs of John QuinlCy Ad-amis, vol. 5, pp. 3(hi-380.) At the tinie this incident arose (October, 1821) John C. Ccalhouin was Secretary of War. It is interesting to note that he participatedl in the, Cabinet considleration of this question, as then pr'es~ented, and that ini the Cabiiiet: The opinion was unailnimous that. as the only laws extendled to the territory were tho.se of the revenue and against the slave tradle, Fromientin's jurisdliction was confinied to thei, and hie had no righIt to issue the writ of habeas corpuvs. (5 Adains_'s M.emnoirs, PP. 367, 368.) Time view tinally accepted by the Cabinet was as follows: We have acquired a Spanish province, heretofore governed by arbitrary principles and by miilitary rule. Congress had not tine at their last session to intolucl u checkedl and balanced system of government there. They- continued, therefore, until their next ses~sion, the ancient system of government; andl all thle powers formerly exerc~ise(1 by the supreme rulers of the province were v\estedl in the governor. The military, was their only executive. To denyv the governor the right to command the soldiers was to strip himi. of all effective power. if citizens of the U nitedl States went into the province, they munst go amid abide there conformiably to the law of the timie and the Iplace. T'heq cann not cirr~i the (ion~stitution or thte 1(1.08 of the Unoited Sfites there,r"itli them. TO) this the autthorit'lf of Conyress ix alon~e competent. (5 Adams's Memoirs, pp. 369,:3710.) THE DEBATE IN THE SENATE OF THE UNITED STATES IN 1849, LED BY WEBSTER AND CALHOUN, ON THE PROPOSITIONS INVOLVED IN THE TWO QUESTIONS-1. fDo the (Con'.titatioll(tnid 1/ke 6O(ly ~? (tt' lasf tOhe fwitc(1 ttt cdp jwioprio 'v/qo)'c, clxtciml (1'0ePi tet/twy/ c ly (hYiI&( b/ the fJ/f/te(i tite fUntel AStates, cte, ce iop) 'PU/o' c OPb (tq (fl!PsS pr/ to the ei~eatto wa a State %/n.sa/d tceridtoly? The doctrine of the extension of the Constitution and laws of the LUnited States over newly acquired territory was originally prom-ulgated byvJohn C. Calhoun, at the time a Senator frJom South Carolina, 141 in his speech on the Oregon territorial bill, delivered in the Senate in 1848, wherein he said: But I denvy that the laws of Mexico call have the effect attributed to theiii (that of keeping slavery out of New Mexico and California). As soon as the treaty between the two countries is ratified the sovereignty and(l authority of Mexico in thle territory acquired by it become extinct and that of thle United States is substituted in its place, carrying with it. thle Constitution, with its overri(ling control over all thle laws and instituticns of MNlexico inconsistent with it., The treaty of peace with Mexico was proclaimed J uly 4, 1848. The conditions then existing in California demlanded the inmediate estal,lishment of a Territorial government. The militaryi government was having difficulty to maintain its authority, for the discovery of gold led to constant desertions fronm military service by the soldiers and broulght into the territory a great numler of lawless persons. Congress sat for six months after the treaty had been ratified attenpting to provide government for the new territories. luit such we're the distractiolns of the slavery (uestion that their efforts were unavailing. Another session was had and wavs drawing to a close witll the same fruitless result. In the closing days of tlhe session the general appropriation lill came from tihe Iouse to thle Senate. It was considered anld was ready to lbe retulned to the House. when Mr. IWalker, of Wisconsin, Moved to almlen(l it by Cattacling' a sectioni p,'oviding a t(eumporary gove',rn ment for thle ceded telritoties landl extendIin' over tlhemll certain designated acts of Conogress. Subsequently Mr. Walker. at the solicitation of othler Senators. inodified his amendment so as to provide for the extension of the Colnstitutionl over said terriitories. (Cong. Globe, vol. 20, p. 561.) The anllnou1ncement of the doctrinie of the extension of the Constitution, e., l),,i, over territory newly acquired, opened an alarming' pr'ospect to the opq)Ionents of slavery. They feared that tilhe Suplreme Court of thle United States w()uld sustain the tloctrile ind thereby bring' to naught the efforts made to lieelp slavery out of the Territories. They vehemently assailed the Walker amendllenet, at first, ulpon thie grounds of expeldiency. This placed thlem at a disadvant:age, for the iecessitv of providing a g'overmnent for California was obvious. The supp)orters of the Calhoun doctrine were equallv at. a (isadvantage, for, if the Constitution extended over Nevw Mexico and California, c(,' j)i'o~'j)/'/o ',,/'o(, there was 110no use in resorting to Congressional action for the 'accomnplishnient of that extension. The discussion took the regltthar slavery turn. That lportion of it which is of interest i,, connection with thle aplplication of the doctrine to tile conditions now calling for consideration, arose as follows: Mr. Bell, of Tennessee, offered an amendment to the Wa'tlker a:mendment, providing for the inlnediate creation of the 'State of Caairit For Calhoun's view on prol)osition at time Flori(da wAas annexed,see tle, pagec 140. 142 fornia" 1by Congressional enactment and that such State, so created, "is hereb)y aldmitted into the Union." (Cong. Globe, vol. 20, p. 562.) Mr. Berrien, of Georgia. a memnber of the Judiciary Committee, assailed this proposal as being in excess of the powers of Congress, since the Constitution did not confer the authority to criate States upon that body. In the course of his argument he said: But I put the question, since it is obvious that this whole subject was considered by the convention-since they gave to Congress the power to make rules and regulations for the government of the Territories and authorized them to admit new Stateswould they have overlooked the condition of the people of a Territory, in their transition state from their Territorial condition to that of a State, if they hall intended to invest Congress with power over that subject, the power to create a State? No, sir. It was omitted, and purposely omitted, in obedience to those great and b)road principles by which that convention was actuated-to the principles of popular sovereignty which belongs to every free people, which requires that those who are to constitute the State are alone coImpetent to organize it. Sir, this interpretation of the Constitution lias leen verified by the uniform usage of this (iovernment from the very tifme of its foundation to the present nmomlent. * — * * * — * * But the question here is, whether the State that is formed by the people of a Territory, with the consent of Congress, is created by the people or 1y Congress? And when that question is examined by the Senator from Tennessee I think he will find it can not ad(lit of a doubt. Congress does not form a constitution and government for the new State. It authorizes the people of the Territory to do this. If the power was in Congress, wh\vy (do they not exercise it'? If Congress possessed the power of creating a State, why do they depute the power to another and not exercise it thenmselves? Could they exercise it? Could they formn a constitution for the new State and comnpel the people of the Territory to accept it and become a State? Sir, it was under the conviction of a total want of power-in obedience to that principle of free governments that it belongs to the people whlo are to form the State to fralme the constitution which is to regulate the action of that State. (Appendix to Cong. Globe, vol. 20, p. 254.) Mr. i)ayton, of New Jersey, desired to provide foi the government of Califorllia by the enactment of a law containing the provisions of the statute which gave a temporary government to Louisiana and Florida. (Appendix to Cong. Globe, vol. 20,? p. 256.) He opposed the plan of creating a State by Congressional action, and, respecting that proposal, said: How can you make California a State government? Can Congress crea(te a State? Congress create a State! Sir, I never thought, until I heard it here a day or two since from the Senator from Tennessee (Mr. Bell), that such a proposition could have entered the mind of any human being. Hlis idea is, that Congress can alone create a State; that no State government can be created in our Territories, save by revolution, if without the authority of Congress. Now, what does this argument prove? Suppose no State could be created in Territories without the leave of Congress, either in advance or by adoption afterwards, save by revolution, what does it prove? It only proves, sir, that we can admit a State into the Union which is a State defacto by revolution. When the debates of the convention were in progress, the section declaring that new States may be admitted was inserted with reference to a future admission of the Canadas, then a dependent province, which of course could only become States by revolution. The only object of the section was to admit a State 143 which mighlt, lbecolne so byv re-volut-ion. If wve have power to create a State, why dlo wve not dto it! W~hv say to the peopJle of ou)ar Territories, as wve ever have, if you. are dislposedl to create a State we will adlnmit you'? It is anl act of poopullar sovereignty, exercis~e it if you pl)ease. Our power is to adboi p Ierinit. you tio come, not to force von,. If we had this power to create, all we wvouIld hav~e to dl( woui(I be too pass a law andI resolve that California wvas a State, andl it wvould become one. A1 sclhoollboy mnav cut a nian. out of a lbit of paper anl say it is a luau, but is it a inan'? 11as it the blood, bones, and siniews of a man? You call this Territory a State, but is it a State? Has it any of the essential powers o)r p)rerequisi4tes of a State'0) Can it (10 anything that a State can do'? If not, wNhat a fiarce is it to (call it a 'State. (Appendix to Cong. Globe, vol. 20, p1. 257. ) Later in the, discussion Mr.i IDayton further sai(1: I supposedl it wvas a clear point that the Constitution o)f tile United States, being a contract and agreement between sovereign States, couldl be extendedl no further than it, by its inhei'ent power, extendled itself. 'No act of legislation (0111( make that cMlpact between sovereign States reach further than to these, States. Now, the Senator talks about the lprincilples of the Constitutioni. W~hy, the, Constitution, sir, does not (consist, of matters of primlcilple. It is a comlpact anl agreeiment, letween sov'ereign States. It. is n((t like tile lprincilples o)f the ('ominuon law or tile iprincilples of the civil law. It is something entirely (liffereuit iii all its, as-,pects. I hiope tilat I aml not intruoling upon the timme 041 lime Senator froin l~iscomnsim imi Saying that thme Con — stitution can not, 1wy legislativ e act, be extendled an hiicl b1)eyond th ertr o)ver which its inherent, power will c'arry it. (Appendix to (Cong. (Globe, vol. 20, p). 268.) Mr. Hale, of New Hamipshire, opposed 1)oth the Ctalhoun doctrine and the Walker amlendmen1C1t, basinig his opposition upon the fact that the Constitution was a conipact between 8ft,, created in ordler to form a mnore perfect union of 8tl~,and, under our theory of governumie~nt, it wvas necessary for- a State to be in existence, and to mnanifest its willimngneSs to cu1ter the compact in or-der to b)ecome a party thereto, and therefor-e the, Constitution could not extend to territory organized or unorganized, either ei' IwoJ.)//o?'ca/ot'(; or by Conlgressional enactment. In the course of his argunient MAr. Hale said: I amn at a loss to see how time Constitution, which is an agreemlent by which the peoJple of the United States pledge themls-elves to tile performance of (certain (duties, for the mutual attainilent of certaini great (11(s and securing great p~rivileges, ('an, lby any act of legislation, an exercise of iucre arbitrary power, be extended over tilose who do not voluntarily lbecomle parties to the comnpac't. You and 1 mnay mlake a bargain amld bind ourselves to carry out our agreemnent, lout how (an we exten-ii its restrictions over timose wAho dlo not ag-)ree to its stipoulations? W~e may extenod the invitation to the people of these Territories, under (certaini restrictions, to lbando themnselves together so that they' may become lparties to this (confederacy, but for 11s to extendl to them tile porivileges of an agreement wvith the provisions of which they wAill not conceur strikes ille, with all due respect to the Senators wilo advo('ate tile princilple, as an absurdity. What is this Constitution? If anything, it is a fundamental law, and if wve may extend its provisions by legislative enactment we mnay wvithdraw thein in the samne mnanni~r. If the Constitution of the United States, by an act of the two Houssesr of Congress, may be extendled to a people wNho do not dlesire to take it, why may we not take it away from tllat people upon the same principle that we have extended to them? Sir, the framers of this Constitution did not so understand it. By the Constitution it was lprovided that as soon as nine of the States had adopted it it should 144 go into operation and be obligatory on them. Now, if the doctrine advanced by the Senator from Wisconsin be true, all that these nine States had to (lo in order to have the whole Confederacy united in support of the Constitution at that particular time was to extend its provisions over the four remaining States, notwithstanding their disapproval of it. Such a construction of the Constitution as this never entered the heads of its framers, nor did they ever treat it as anything but what it purports to be-a compact. But the Senator from Georgia endeavors to meet this difficulty by saying that we may extend one or more of the provisions of the Constitution by legislative enactment, so that the people of the Territories may be governed by these provisions of the Constitution. And so we may extend any of the provisions of the Constitution, one by one, and make theml the law of that country. But this is a different thing from extending the Constitution itself. There is exactly the same objection in 1nv mind to this aniendmnent that there was to the amendment proposed t;) tle famous comprolnise bill reported at the last session. It proposed not to make any enactmnent which you dared not mnake at that time. As we diid not dare to make the enactment we attelmpted to get around it )by transferring to the judiciary the lerforlmalnce of thie duty which we ought to have executed ourselves. This amnendment, if it does anythling at all, adopts the very principles of the colnmromlise )ill; it provid(es that thle Constitution, whatever mnay be its provisions on the sul)ject of sla ver!, shall be exten(ded over these Territories, and then leaves the interpretation and executionl of these provisions to the decision of thle Supl)renle Court, exactly in the same lnmanner as the compromise )ill (lid. There is another article in thle prealmble to tlIe Constitution, as originally formed, which tlirrows some- light uplon this question, and thlat is thle declaration that the Constitution was formled ';or tf1h lU'fted,So(tt,s." And there is great force in the suggestion thrown ouIt by the,Senator from New Jersey (Mr. Dayton) that he did not undlerstandl the Territories as being subject to thle Constitution as an entire instrumlent, b)ecause the first section of thle tlhird( article provides that "the judges, both of the Sut)reme an(l inferior courts, shall hlold their ftices (luring good behavior," and we aI)l)oint jutdges of tlhe inferior courts in the Territories for a limited time, thus concedilng- that tlhe Constitution. as a whole, does not extendl over these Territories, nor can it (lo so; the idea is absurd. Tllis is thle main difficultv in the way of thle amnendn(lnet of the Senator from Wisconsin, that instea(l of recognizing the Constitution simli)ly as a compact lie regards it as a law which we may extendll or not, at our pleasure, which I think is not competent for us to do. (Appeilldix to Cong. (llobe, vol. 20, 1. 270.) Nomie of the supporters of the C(alhoun doctrine seemed to entertain the idea tlhat thle Constitution and body of laws of the trnited States extended, iM entirety, over New Mexico and California. It was conceded that the extension was limited to such parts of the Constitution and body of laws as were applicable to the conditions existing in said territory. AMr. Butler, of South Carolina, said: I go further and say tihat, proprio vigore, thle momient that Territories are acquired under treaty thle p)rovisionls of the Constitution of the Vnite(l States extend to that Territory, to some, though not to the entire, extent of its provisions. This Territory was acquire(l under treaty, and I say that thle provisions of the Constitution, with the qualification of applicability, are now, proprio vigore, the fundamnental law of California and New Mexico. Anid when I say that, I admit that there may be wanting some machinery of courts andl officers to carry out those provisions, b)ut they nevertheless exist as the fundamental law. (Appen(lix to Cong. Globe, vol. 20, p. 271.) 145 At this point in the debate occurred the famous colloquial discussion of the sutbject between Webster and Calhoun. This discussion has such direct bearing upon the subject that it is quoted in full. Mr. WEBSTER. Mr. President, it is of importance that we should seek to have clear ideas and correct notions of the question which this amendment of the member from Wisconsin has presented to us; and eslecially that we should seek to get some conception of -what is meant by the proposition in a law to " extend the Constitution of the United States to the Territories." \Vhy, sir, tile tiling is utterly impossible. All the legislation in the world in this aeneral form could not accomplish it. There is no cause for the operation of the legislative power in such a manner as that. The Constitution-what is it'? We extend the Constitution of the United States to territory! W\hat is tlhe Constitution of the United States? Is not its very first principle that all within its influence and comprehension shall be represented in the legislature which it establishes, with not only a right of debate and a right to vote in both Houses of Congress, but a right to partake in the choice of the President and VicePresident? Andl can we by law extend these rights, or any of them, to a Territory of the United States? Everybody will see that it is altogether impracticable. Well, sir, the amend(ment goes on and says that the revenue laws shall, so far as they are suitable, be applied in the Territories. Now, with respect to that qualification made by the honorable member from Wisconsin, I shall like to know if he understands it, as I suppose he does. Does the expression "as far as suitable" apply to the Constitution or the revenue laws, or both? Mr. WALKER. It was not the proposition to extend the Constitution beyond the limits to which it was applicable. SMr. WEBSTER. It comes to this, then, that the Constitution is to be extended as far as practicable; but how far that is is to be decided by the President of the United States, and therefore he is to have absolute and despotic power. He is the judge of what is suitable and what is unsuitable, and what lie thinks is suitable is suitable, and what he thinks unsuitable is unsuitable. lie is" omnis in hoc;" and what is this but to say in general terms that the President of the United States shall govern this Territory as he sees fit till Congress makes further provision? Now, if the gentleman will be kind enough to tell me what principle of the Constitution he supl)oses suitable, what discrimination he can draw between suitable and unsuitable, which he proposes to follow, I shall be instructed. Let me say that in this general sense there is no such thing as extending the Constitution. The Constitution is extended over the United States and over nothing else, and can extend over nothing else. It can not be extended over anything except over the old States and the new States that shall come in hereafter, when they do come in. There is a want of accuracy of ideas in this respect that is quite remarkable among eminent gentlemen, and especially professional and judicial gentlemen. It seems to be taken for granted that the right of trial by jury, the habeas corpus, and every principle designed to protect personal liberty is extended by force of the Constitution itself over every new Territory. That proposition can not be maintained at all. How do you arrive at it by any reasoning or deduction? It can only be arrived at by the loosest of all possible constructions. It is said this must be so, else the right of the habeas corpus would be lost. Undoubtedly these rights must be conferred by law before they can be enjoye(l in a Territory. Sir, if the hopes of some gentlemen were realized, and Cuba were to become a possession of the United States by cession, does anybody suppose that the habeas corpus and the trial by jury would be established in it by the mere act of cession? Why more than election laws and the political franchises, or popular franchises? Sir, the whole authority of Congress on this subject is embraced in that very short provision that Congress shall have power to make all needful rules and regulations 1394-03 10 146 respecting the Territories of the United States. The word is Territories; for it is quite evident that the compromises of the Constitution looked to no new acquisitions to form new Territories. But as they have been acquired from time to time, new Territories have lbeen regarded as coming under that general provision for making rules for Territories. We have never had a Territory governed as the United States are governe(. The legislature and the judiciary of Territories have always been established by a law of Congress. I do not say that while we sit here to make laws for these Territories, we are not bound by every one of those great principles which are intended as general securities for public liberty. But they do not exist in Territories till introduced by the authority of Congress. These princi)les (do not, proprio vigore, apply to any one of the Territories of the Unite(1 States, because that Territory, while a Territory, does not become a part, and is no part, of the United States. MIr. CA:ILHox. I rise, not to (letain the Senate to any consideralle extent, but to make a few remarks upon the proposition first advanced by the Senator frozm New Jersey, fully indorsed by the Senator from New Hamlpshire, and partly indorse(d by the Senator from Massachusetts, that the Constitution of the United States does not extend to the Territories. That is the point. I am very happy, sir, to hear this proposition thus asserted, for it will have the effect of narrowing very greatly the controversy between the North and the South, as it regards the slavery question in connection with the Territories. It is an implied admission on the part of those gentlemen that, if the Constitution does extend to the Territories, the South will be protected in the enjoyment of its property-that it will he under the shield of the Constitution. You can put no other interpretation upon thle proposition which the gentlemen have made than that the Constitution does not extend to the Territories. Then the simple question is, I)oes the Constitution extendl to the Territories, or does it not extend to them? Why, the Constitution interprets itself. It pronounces itself to be the supreme law of tile land. Mr. WEBSTER. What land(? SMr. CALTITOUN. The land; the Territories of tlhe I'nited States are a part of the land. It is the supreme law, not within the lillits of the States of this Union inerely, but wherever our flag waves-whlerever our autihority goes, the Constitution in part goes, not all its provisions, certainly, b)ut all its suitable provisions. Why, can we have any authority beyond the Constitutioll? I put the question solemnly to gentlemen: If thle (onstitution does not go there, ho\w are we to have any authority or jurisdliction whatever? Is not Congress the creature of the Constitution? Does it not hold its existence upon thle tenure of the continuance of the Constitution, and would it not be annihilaited upon the destruction of that instrument, andl the consequent dissolution of this confedleracyv? And shall we, the creature of the Constitution, pretend that we have any authority lbeyond the reach of the Constitution? Sir, we were told a few days since that the courts of tile United States had made a decision that the Constitution did not extend to the Territories without an act of Congress. I confess that I was incredulous, an a I am still incredulous that any tribunal, preten(ling to have a knowledge of our system of government, as the courts of the United States ought to have, couldl have pronounced suchl a monstrous judgment. I ami inclined to think that it is an error which has been unjustly attributed to them; lut if they have made such a decision as that, I for one say that it ought not and never can be respe(cted. The Territories belong to us; they are ours; that is to say, they are thle property of the thirty States of the Union; and we, as the representatives of those thirty States, hiave the right to exercise all that authority and( jurisdiction which ownership carries with it. Sir, there are some questions that (do not aldmit of lengthened discussion. This is one of them. The mere statement is sufficient to carry conviction with it. And I am rejoiced to hear gentlemen acknowledge that if the Constitution is there we are under its shield. The South wants no higher ground to stand upon. The 147 gentlemen have put us upon high ground 1b the admission that their only means of putting their claimls above ours is to dleny tile existence of tile Constitution in California and New Mexico. Thle Senator froii Massachutsetts, I say, in part indorsed tle proposition. lie (lualified it, however, )by saying that all the fundalmental priln(ipiles of tlat instrulllent lllust be regarded as having ap)plication t ttle Territories. Now, is thlere a more funrdamental principle than thtat tlhe States of which this I1Felderal Union is composed llave a comml unlity of interest in all that belongs to thle lUnioll ill its federative character? An(l thlat the territory of the Ulnite(l States l)elomgs to tlle Inion in that capacity is lteclareld 1y tlie Constittion, and tlitt there shall be, ill all respects, perfect equality amlong all thle members of the ('onfederacy. Tin're is no principle Illre distinc(tly set forth-thanl that there sihall Ie (no (liscrimllinatio( ii favor of one section over another, and tliat tle Collstituti),l shall have no halfway operation in regard to (oe portioin of the Union, while it sllall have fill force adtl effect ill regar(l to another portion. I will not dwell upo-l this. I will only listen, if gentlemlen choose to 'o oln, in order to discover 1) whiat ilngeuitv they can imake out tlleir case. It is a. lere assumption to say thiat tlie Constitution loes not exteln to tlhe Territories. I et tile gentlemen prove their assumpltion. I liold tlie course o(f tile wollle ()f tlis dlelate to be triumiphant to us. We are placed( upon higher grroundl; w he ave a narr(\ower (Ilestio(n to defend; and it will be un(lerstoodl 1y thie c'iiuni it thtlat we are Ilonsllited (oly )by a ldenial of tihe existence of the Constitttion ill tlte Territoris. IMr. AWEBSTEil. The honorablle Senator from Soutll Carolina alludes to sille decision of the 'United States courts as affirming that the (C(mstitution (of the Ilnited States does not extend to the Territories, and lie says that witli regard to) \Ir. CA.L il1cN. I 1o1pe tlie gentlelmann will state Iy positionll exactly right. I said( I was toll a few dlays since that they ha(d so leci('i(, le(lt tllhat I was\ in'credulmll s of tile fact. Mr. W\'r:STER. I. call remove the tgentlema n's incredulity very easily, fr I (canl assure him thlat th-e same tling hlas )been decided(l )by the llited. States (o)lrtts (ver and over agail for tlle last thirty years. IMr. CALHOI(-)N. I would l)e gl(d to llear thle gentleman (mention a case ill which such a decision was given. lMr. WEBSTERI. U['!)m a few mllollnents' consileration I (ciulld illenltion a ilttnll)er i)f cases. Tlie Constitution, as tlie gentleman (ci(ltell(ls, extenlls over thle Territ(cries. How does it get thlere? I am surprised to h1ear a!entlemnan s;) distiluislled as a strict coInstructionist aflinilrng tliat tlle C(olstituti)nl ()f the United Statts extesll(l to the Territories withoult showing us any clause ill thle C'onstitutio in anl way leadliing to tlat result, and( to hear the genlltlema m llaintaillilg tilat pio(sition withlout silowing us any way in which such a result coull b)e inferredl increases mly siurprise. ()lne idea furtherr upon this bralnch of tlie subject. The Constitutionl of the United States extendilg over tile Territories aild no otlher law existing there! Whxy, I beg to know how any governmllmeit coulll proceed, witilout any o(tlier authority existingi there than suchl as is (createdl b)v the Constitution of the l'iite(l States'? Does tlie Constitution of the United States settle titles to laInd? I)oes it regulate tlie rights of iroperty.? Does it fix the relations of parent andl chlil(d, guairdian and ward'? Tile Constitntion of the United States estal)lishes what tile gentlemllan calls a confederation for certain great purposes, leavihgg all the great mlass of laws which is to govern society to derive their existence from State enactmlents. Tlat is tle just view of tile state of things under the Constitution. And a State or a Territory that has no law but such as it derives from the Constitution of tile United States nmlust be entirely without any State or Territorial government. Tile honoralle Senato-r from Souti Carolina, conversant with the subject as lie imust be, froni his long experience in different branclhes of the (rovernmlent, milust knowx that the Congress (of tle United States have established principles il regard to the Territories that are utterly repug 148 nant to tie Constitution. The Constitution of th-e Unite(l States has provided for them an indepeendent judiciary; for the judge of every court of the United States holds his office upon the tenure of good behavior. Will the gentleman say that in any court established in the Territories tile judge holds his office in that way? He holdls it for a term of years, and is removable at Executive discretion. How did we govern Louisiana before it was a State? Did the writ of habeas corpus exist in Louisiana during its Territorial existence? Or the right to trial by jury? Who ever heard of trial by jury there before the law creating the Territorial government gave tlhe right to trial by jury? No one. And I (o not- believe that there is any new light now to 1)e thrown upon the history of the proceedings of this (;overnment in relation to that matter. When new territory has been acquired it lhas always been sublject to tle laws of Congress, to such law as Con(rress thought proper to pass for its immed(liate goverinment, for its governmnent dluring its territorial existence, during tlhe preparatory state in which it was to remain until it was ready to come into tile Union as one of the family of States. Tile honorable Senator from South Carolina argues that the Constitution declares itself to l)e the law of the land, and that therefore it must extend over the Territories. "The land," I take it, means the land over which the Constitution is established, or, in other words, it means the States united under the Constitution. But does not the gentleman see at once that that argument would prove a great deal too much? Thle Constitution no more says that the Constitution itself shall be the supreme law of the land than it says that the laws of Congress shall be the supreme law of the land. It declares that the Constitution and the laws of Congress passed under it shall be the supreme law of the land. Mr. C.LIIouX'. The laws of Congress mnade in pursuance of its provisions. Mr. WEBSTER. Well, I suppose the revenue laws are nade in pursuance of its provisio)ns; but, according to the gentleman's reasoning, the Constitution extends over the Territories as the supreme law, and no legislation on the subject is necessary. This wouIt be tantamount to saying that the lmoment territory is attached to the Unitedl States, all the laws of the United States, as well as the Constitution of the United States, become the governing will of mlen's conduct, andl of the rights of property, because they are declared to I)e the law of the land-the laws of Congress being the supreme law as well as the Constitution of the 'nited State.. Sir, this is a course of reasolning that can lnot b)e maintained. The Crown of England often makes conquests of territory. Who ever lleard it contended that the constitution of England, or the supreme power of Parliament, because it is the law of the land, extended over the territory thus acquired, until made to do so by a special act of Parliament? The whole history of colonial conquest shows entirely the reverse. Until provision is mlade lby act of Parliament for a civil governmeint, the territory is held as a military a(c(uisition. It is subject to the control of Parliament, and Parlianent nma nmake all laws that they (leem proler an(l necessary to be made for its government; lbut until such provision is ma(le, the territory is not under the dominion of English law. And it is exactly upon the sanme principle that territories coming to belong to the United States b1y acquisition or by cession, as we have no jus corome, remain to be made subject to the operation of our supreme law by an enactment of Congress. Mr. CALHOUN. I shall be extremely brief in noticing the arguments of the honorable Senator fron Massachusetts, and, I trust, decisive. His first objection is, as I understand it, that I show no authority by which the Constitution of the United States is extended to the Territories. How does Congress get any power over the Territories? Mr. WEBSTER. It is granted in the Constitution in so many words-the power to make laws for the government of the Territories. Mr. CALHOUN. Well, then, the proposition that the Constitution does not extend to the Territories is false to that extent. How else does Congress obtain the legisla 149 tive power over the Territories? Andl yet the honorable Senator says I assign no reason for it. I assigned the strongest reason. If the Constitution does not exten(I there, you have no right to legislate or to (lo any act in reference to thle Territories. Well, as to the next pioint. The honorable Senator states that he was surprise(l to hear fromn a strict constructionist the Iproposition that the Constitution extendls itself to the Territories. I certainly never contended that the Constitution was of itself sufficient for the government of Territories without the intervention of legislative enactments. It requires hunman agency everywhere; it call not extend itself witinll the limits of any State, in the sense in which the gentlemanl speaks of it. It is, nevertheless, the supre-me law, in obedience to which, an(l ill conformity witll w\htich, all legislative enactments Imust l)e made. Andl the plroIposition that tile Constitution of the United States extends to the Territories so far as it is applieable to tllem is so clear a proposition that eveni the Senator fromn MIassachustietts, with his profound talent, can not disprove it. I will put the case of some of tile negative plrovisiols of tile Constitution. Congress can mnake no law concerning religion, nor create titles of nobility. Call you establish titles of nobility in (California'? If not, if all thle negative Irovisions extend to the Territories, whly nIt thle positive'? I do not thlink it necessary to (Idw-ell any longer upon this point. MrI. Wl EBSTER. The precise (questionl is whtletherl a Territory, wlile it. relainl in a territorial state, is a part of thle I'nited States,. I imaintain it is not. A,1(l tlthere is no stronger proof of what has been the idea of tlle (Goernmnent iil tllis reslect ttlan that to which I lhave alluded and which has drawn thle ionoralle meblller's attentionll. Now, let us sete hlow it standis. The judicial powmer of thle t.nite(. Statts is,lct lared b:) the Constitution to l)e " vested ill one Supremne (Court anml in such inferior, courts as Congress shall fromil tinme t(, tine or(lainl an(l estab)lislh." The whole jldicial po\wer, therefore, of the Unitel States is ill these coulrts.,\An the Constitution declares that "all thle juldges of these courts slall lhoIld their offices diurillr g(,,(w I)ehavior." Then tle gentle'mai imust amliit that the legislation (-f Congress hleretofore has not been altogether in error; that these Territorial 'oulrts dlo mnot-cllstitute a part of the judicial lower of tile l'nited States, lecause thle wlide jllicial power of the United States is to h)e vested in (,lle Supremle Court an(l in such inferior court.st as Contress shall estab)lish, andl the judges of all these courts are to have a lift' tenure under the law; anl Awe (., )not give such tenutre, nor never dli(l, to thle jutg(res (,f thltese Territorial courts. Tllhat hlas go(ne oil the l)resulllltion and true i(lea, I spp)lo(, tlat the Territories are not \'even part of the l'nitedl States, b)ut are subject t.-) ttheir legislation. lWell, where (1() tlhey geet this ipowerlm of legislation? \'ly, I h1ave alrea11t stated that the Constitution says "tlhe Congress shall have power to (lislIse of,;tuld make all needful rules an(l regullatio)ns respecting, tile territory or ((ther lroperlty belonging to the United States," and it is Unllder that (clause only that thle legislation of Congress in respect to tile Territories has lbeeCl c()nluctedl. And it is applarent froim our history tihat no other plrovision was inten(le(l for Territorial (ovm',ermnent, inasmluchl as it is highly probable, I think certain, that no a('(luisitiol of foreign territory was exer (onltemll:latedl. And again, there is another reimarkable instance. The honoral)le gentlemlan a'nd his friends who act witIl hill ()n these subjects hold that tile power of internal iml)rovement within the United States does not b)elong to Congress. They deny thlat we call pass any law for internal imip)rovemenets within any State of this lUnion, while they all admit that the moment we get otut of the States inito a Territory we can make just as much imnprovellelln t Cas we choose. Thlere is not an honoral)le gentleman omi that Side of the Chamber who has not, time andl againi, voted( money out of the public Treasury for internal imlprovelnents out of the Unlion in Territories, under the conception that, Iunder that provision of the Constitution to which I have referred, they do not constitute any portion of the Union-that they are not parts of the Union. 150 Sir, there is no end to illustrations that might be brought upon this subject. Our history is full of thell. Our history is uniform in its course. It blegan with the acquisition of Louisiana. It went on after Florida lbecallle a part of the Union. In all cases, under all circumnstances, by every proceeding of Congress on the subject, and lby all judicature on the subject, it has been heldl that Territories belonging to the Inite(l States were to be governed hy a constitution of their own, framned )by a convention, and( in approving that constitution the legislation of Congress was not necessarily confined to those principles that blind it when it is exercised in. passing laws for the United States itself. But, sir, I take leave of the subject. MIr. CLor-X.. I'. President, a few words. First, as to the judiciary. If Congress has (lecidedl the judiciary of the Territories to be part of the judiciary under the Initedl States, Congress has decideld wrr)ng. It may be that it is a part of the judiciary of the lTnited States, though I (lo not think so. Mr. W\\ESTER (in his seat). Nor I. Mir. C.xI L-HoN'. Again, the honorable gentleman fromlll assachusetts says that the Territories are not a part of the UTnited States-are not of the UJnited States. I had supplose(I that all thle Territories w-ere a plart of the United States. They are called so. Mr. AVENST.rl E (in his seat). Never. MIr. (.\II(ovUN. At all events, they belong to the United States. \Ir. WEUBS'I':t (still in his seat). That is another thing. The colonies of England belolng to Inlgrlandlll, but they are not a part of ]England. lMr. C.\LIio-xN. Whatever belonlgs to tlhe 1United States they have authority over, andl Englland has authority over whatever l)elongs to her. We (can have no authority over anything that (loes not b)elong to the Uinited States, I care n1ot in what light it mlay be placed. 1Bu1t, sir, as to the other point raisedl }by the Senator-internal ilIn)rovellents. The Senlator s.-vs there is not. a membller on thiis side of tle Chamber but what has vote(l to al)l)roplriate lloney oult of tile pulblic Treasury for internal imnprovelnents in the Territories. I knlow tllat a very large pIortion of the gentlemllen on this side have vit((l to approp)riate nomey out of the pilllic Treasury for improvements in Territories, upIl) the principle of ownershi-p; that the land in tile Territories in which illprovements are mnade hlas anl increased value in I)roportion to the sunts approp)riate(l, and( the alppropriations lave in every case been given in alternate sections. Butt many11 gentlemen here have utterly (lenie.d our right to make them under that forum. But that question comes under another category altogether. It comnes under tllhe category whetler we have a right to appropriate funds out of the common Treasulr at all for internal improivements. Sir, I repeat it, that the proposition that the Constitution of the United States exten(ls to the Territories is so plain a one and its opposite-I say it with all respectis so absulrd a one that the strongest intellect can not maintain it. And 1 repeat tlhat the gentlemlen acknowledge, by implication, if not mnore than that, that the extensioI of the Constitution of the I nited States to the Territories w ould be a shield to thle South upon the question in controversy between us anlld them. I hold it to be a lmost iml)ortant concession. It narrows the ground( of controversy between us. We thenl can not })e d(lerived( of our equal participationl in those Territories without beil, (dleprive(l of the advantages and rights which the Constitution gives us. (Appendlix to C(ong. Globe, vol. 20, pp. 272-274. ) 151 THE PROCEEDINGS IN CONGRESS DURING THE PASSAGE OF THE BILL PROVIDING FOR THE PAYMENT OF THE PURCHASE PRICE OF ALASKA, WHEREIN THE HOUSE REQUIRED THE SENATE AND EXECUTIVE TO RECOGNIZE AND RESPECT THE RIGHT OF THE HOUSE TO PARTICIPATE IN THE DETERMINATION OF THE QUESTION WHETHER OR NOT A CESSION OF FOREIGN TERRITORY TO THE UNITED STATES SHALL BE ASSENTED TO BY THE SOVEREIGN PEOPLE OF THE UNITED STATES. In my report on "The status, etc.,' submitted February 12, 1900,1 reference was made to the proposition that, in order to complete the cession of territory from another sovereign to the United States, it is necessary to secure the assent of the sovereign of the t'nited States to such transfer; that sovereignty in the United States is vested in the people, and the sovereign will of the people is to be declared by the Conglress and can not be declared by the llilitarv aulthorlity nor the treaty-making' power of this G(overnnlent.- The House of Replresentatives has always asserted its high prerog'ative respecting this matter and insisted upon its being recognized. It woul(l seem that ample justification for sutch illsistence is found il propounlding' the question, How (an the will of the sovercigon lcople of the United States )be ascertained except by the action of Conlrel'ss ill which the House must participate There is also lan additional reason, of great importance, why the House of Representatives shoulld participate il determinini g whether or not a prop1osed cession of territory should })e accepted, to which attention is directed by a disc ussionl now ill progress in this country. It is asserted by no inconsiderablle Ilnumbler of people that a treaty providing for the cession of foreigni territor to th te United States being ratified by the Senate, sigoned )by the Executive, ratifications exchanged and the treaty proclaimed, iposfacto(, the revenue laws of the United States are so modified that the products of the territory to which the treaty relates are to be admlitted into the ports of the United States free from custom duties. The Constitution provides (art. 1, sec. 7, cl. 1): All bills for raising revenue shall originate in the Hlouse of Representatives. In respect of this provision of the Constitution, The Federalist says (No. 58, pp. 269-270, ed. 1852): The House of Representatives can not only refuse, but they alone can propose, the supplies requisite for the su)pport of Governinent. They, in a word, hold the pursethat powerful instrument by which we behold, in the history of the British constitution, an infant and humble representation of the people, gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the Government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with w'ii(ch anyl constitution can arm the immediate representatives of the people for obtaining a redress of every grievance and for carrying into effect every just and salutary measure. 'Ante, page 37. 152 Is not this great power of the House of Representatives rendered nugatory if the treaty-making power, in which the House does not participate, may exempt from the operations of the revenue laws originating in the House the products of territory which the House contemplated and declared should be subject to said laws" The fact that such modification of the revenue laws arises by implication from the cession or is incidental thereto, does not avoid the force of this important provision of the Constitution. If the treatymaking power may properly exercise this authority inferentially or incidentally, it may exercise it directly and enter into such reciprocity treaties respecting trade and commerce with foreign countries as it sees fit to do, and thle House of Representatives is powerless to prevent such action. The report on ''The status, etc(.." submitted February 12, 1900, contained the following: The subject was again before Congress when the bill making appropriations for the purchase of Alaska was under consideration, and was disposed of by the H1ouse accepting from a conference committee a preamble reciting that the stipulations of the treaty "that the United States shall a(;cept of such cession '* * * can not be carriedl into full force and effect except by legislation, to which the consent of both Houses of Congress is necessary." (15 U. S. Stat., 198.) The report of the conference co0limmittee was adopted by tlhe Senate and House of Representatives, and thereby Congress declares that the cession of territory to the IUnited States must be effected by legislative enactment; that is, the assent of both H-ouses of Congress must be secured. The House of Representatives tllhrough all our history has guarded with vigilance its constitutional right to participate in the declaration of the will of the sovereign people of the United States in all matters which by the Constitution are subjected to the legislative branch of this Government. A review of all the instances in which the House has asserted this right would constitute;a vollume; therefore, I select the instance of Alaska, for the proceedings therein contain reviews of many former instances. When the bill making an appropriation for the purchase price of Alaska was reported for passage, Mr. Loughridge, of Iowa, moved tc amend by inserting the following as a substitute: Whereas the President of the United States, on the 30th of 3March, 1867, entered into a treaty with the Emperor of Russia, by the ternis of which it was stipulated that, in consideration of the cession by the Emperor of Russia to the United Stales of certain territory therein described, the United States should pay to the Emperor of Russia the sum of $7,200,000 in coin; and whereas it was further stipulated in said treaty that the United States shall accept of such cession, and that certain inhabitants of said territory shall be admlitted to the enjoyment of all the rights and immunities of citizens of the United States; and whereas the subjects thus embraced in the stipulations of said treaty are among the subjects which, by the Constitution of the United States, are submitted to the power of Congress, and over which Congress has exclusive jurisdiction; and it being for such reason necessary that the consent of Congress should be given to the said treaty before the same can have full 153 force and effect, having taken into consideration the said treaty and approving of the stipulations therein. To the end that the same may be carried into effect: Therefore, SEWc. 1. Be it enacted, That the assent of Congress is hereby given to the stipulations of said treaty. (Cong. Globe, 2d sess. 40th Cong., part 4, p. 3621.) Mr. Loughridge supported his proposal with marked ability, advancing with other arguments the following: I shall leave the question of the physical character of tlis territory and its value to others better informed than I am on that question. There is another question involved of far more importance, one before which the question of the value of this territory sinks into utter insignificance, a question more iImportant than which has never been discussed within these walls. That question, sir, is in relation to the rights, the powers, and the constitutional prerogatives of this House of Representatives as one of the departments of this Government. That (luestion is directly involved il this case, and to that I propose to direct llmy remarks; andl so far as that question is concerned it makes no difference whether this territory is a worthless, frozen waste of eternal ice and snow or whether it: is a fertile, bloomning, fruitful garden. Upon this question the chairman of the Conmmittee on Foreign Affairs has said but little in his remarks in favor of this bill, and I say in all candor that I am unable to gather from the report of the committee or from the splech of the chairman what the opinion of the committee or of tile chairman is in relation to the extent of the treaty-making power as vested il the Presidenlt or in relation to the constitutional rights and prerogatives of the House in connection with treaties. * * * * * * * An attempt is being made, through the means of the treaty-making power, to (oncentrate almost all of tle power of this Government in the hands of the President, subject only to the advice and consent of the Senate. Andi this )rol)osition is, if adopted, a long step in that direction. I hesitate not to say, sir, that if, without amly explanation, disaffirmance, or protest, we make this appropriation, we shall, so far as this House can do it, have surrendered practically all the power of the Government into the hands of the treaty-making department and re(luced this ITouse to the position of an involuntary agent of that i)ower, with no discretion but to carry out its expressed will. That we are rapidly drifting in that direction it seelms to mie linst be a)pparent to the most casual olserver. By substituting a foreign government or an Indian tribe in place of this tIouse, on the principle claimed by the Executive, there is nothing within the whole scope of the legislative p)owers of the Goverlnment that can not be done without the consent or intervention of this Iouse. I defy any gentleman to point out a single act of legislation that can not be done through and by the treatymaking poon er if we adllit that power to the extent claimed by the Executive. * -* * * * * * Fronm the course of tle Executive in this case it is clearly his olinion and that of his advisers that Congress has in no case any (discretion in relation to passing the laws necessary to carry treaties into effect; but that when a treaty is made by the President and ratified )by the Senate it is the duty of this House then to recognize it as the supreme law of the land and to pass all laws necessary to carry it into effect, whatever may be the nature or character of its stipulations and regardless of the views of Congress as to its expediency or its bearing upon the public good. That the President has the power, with the consent of the Senate, to purchase territory from foreign powers to any extent and annex such territory to and make it a part of this Government and make all its inhabitants citizens of the United States, and to appropriate for such purpose such sums of money as he may see fit; that this may be done by secret treaty, without any authority or consent from Congress, and that after such treaty is consummated Congress has no control whatever over the matter, but must, without question or hesitation, appropriate the money required and pass all necessary 154 laws to carry the treaty into effect; and there is no limit to the extent of this power. It may extend to the purchase of the whole continent, British America, Mexico, XWest India Islands, and thus insure the destruction of our Governmlent. Sir, as one of the Representatives of the people upon this floor I here enter my earnest and solemn protest against this monstrous assumption-this fatal political heresy. If this doctrine is to prevail, then, sir, this House is but a useless appendage to the Government, and for all practical purposes might as well be abolished. Can any gentleman upon this floor go home to his constituents and tell them that he has agrreed to the surrender of his rights, his power, and his dignity as a member of this House, and the surrender of the constitutional rights of the people through their 'lepresentatives upon this floor to be heard upon as important questions as are involved in the unlimited extension of the jurisdiction of our Government and the unlimite(l increase of our already crushing debt? *^ * * * * * * I hold the true doctrine and the law in relation to the treaty-making power to be that which the House declared in 1795; that while the treaty-making power is vested in the President, )y and with the advice and consent of the Senate, and while the House has no agency in making treaties, yet when a treaty contains stipulations in relation to subjects which by the Constitution are sub}nitted to Congress, the treaty must depend for its execution upon laws to be passed by Congress, and that in all such cases it is the l)rerogative and the duty of Congress to delil)erate, to take into view all of the consi(lerations bearing upon the question, and to act upon it according to their judgment of the interests of the (iovernment and the wishes of the peol)le, and either pass the necessary laws, and thus give the treaty vitality and effect, or refuse to pass them, as in their opinion the public good requires. Take the case now before the House: The President, with the advice and consent of the Senate, made a treaty of purchase with Russia wherel)y that power agreed to transfer to the United States certain territory, in consideration of which territory the United States agrees to pay Russia $7,200,000 in gold. This treaty was ratified by both powers an(1 ratifications exchanged. And Congress is now asked to enact a law for the appropriation of the necessary money and to carry the treaty into effect. Now, if the doctrine I have referred to, and to which I object, is correct, and if without any legislation by Congress the treaty is effective, clothed with vitality and the law of tile land, then no laws of Congress are necessary, and the treaty itself is a sufficient law for the appropriation of the money. Sir, the application to Congress for the passage of a law for the appropriation of the money and to carry the treaty into effect is a clear and conclusive demonstration of the error and the unsoundness of the doctrine claimed by those who regard this negotiation as perfected and binding without the action of Congress. * - X- * * -X- -*- -XI trust, sir, that but few will be found upon this floor willing to consent to a doctrine so dangerous, willing to yield up the authority and prerogatives of this House vested in it by the Constitution of the country, and which it has always heretofore persistently maintained. But there is another question involved in this case in addition to that of the appropriation of the money, and one of equal importance and interest, and that is as to the power of the President, with the advice and consent of the Senate, and without the consent of Congress, or of the people of the United States, by treaty, to extend the area of our Government and bring into its jurisdiction foreign countries and foreign peoples. This power I deny. I do not claim that the Constitution has vested this power in Congress in express terms. As I read that instrument it is silent on the subject. Such power is not by that instrument given to any department of the Government in express terms. I do not wish to be understood as denying this power to the (4overnment. By the laws of nations all governments have the right to add to their domain by purchase and by conquest, and I 155 suppose that our Government has this right, by the laws of nature, the samle as the riaht of self-defense —the right to (lo what is necessary for its own existence. Jefferson, I believe, placed the power to purchase Louisiana upon the law of nlecessity, of self-lpreservation. lany of our greatest statesmen have placed it upon the clause in the Constitution giving Congress the power to adinit new States into the lUnion. But fromn whatever source the p1ower is derived, I d(eny that it lbelongs to or is vested( ill the treaty-making department, but that it lelongs strictly to Congress. (Congressional Globe, secondl session, Fortieth Congress, part 4, pp. 3621, 3622, 3623.) Mr. AMeyers, of Penns'lvania, said: I will not for a imoment a(lmit that the action of the President an(l Senate blinds us to comlplete any lpurchase of territory whatever. If the treaty-making power extended thus far we should l)e require(l to accept a country although inhabited by millions of slaves, or thousalnds of iles distant, though. its religion were inclosed ill the Koran, or its people dwelt at the feet of polfgamlmy anlld )arl)arisml. If Alaska could ble thus acquired, w-hy not China or Japan?' To state the proposition that the House of Rep)resentatives need not }be conlsulted ill such an event is its own best refutation. It is unnecessary to trouble the colnllittee with prece(lents. The Hiouse of Representatives asserted its right in this regard, evemn against the protest of Washlington, as early as 1794, ill relation to tlle B1ritish treaty, andl llas ill no instances that I anm aware of surrendlere(l this right. Nor is the olbjection solely that a grant of money imust ble mna(le by- law efore the treaty can l)e carried( to its )perfect consuiilnation. It is for tile )eol)le, through thleir Rep)resentatives, to say whether fromt locality or for any cause anll acquisitionl of territorv is sulversive, ill their op)inion, of the interests or principles of tlle (overnllment. (I1)., 1. 3661.) Mr. Fe'rriss. of New York, called attention to the fact that the Hlouse of Replresentatives hald allwav1ys theretofore insistedl upon the niecessity of concurreint iaction b)y both llouses of Con'gress in the -acquisition of territory by the U'nited States, anld carefully reviewed the history of each acquisition. (lb., p. 31' 3 et seq.) The further debate ill the House on the. propositions contained in the substitute offered I)y Mr. Loug'hridge is to }be fouled in the appendix to the Congressiio nal: Glo:e, second session Fortieth Congress, part 5. Argulentts il support of the substitute w-vere delivered by Paine, of Wisconsinl (p. 305); Shellabarger, of Ohio (p. 37 7); Priice, of Iowa (p. 3801)); W\ashburn,, of WiscoInsin (p. 392); Butler, of Alassachusetts (p. 400); I)elano, of Ohio (p. 452); Cullom, of Illinois (p. 473), and Williams, of Pennsylsvania (p. 485). Arguments in opposition to the substitute were offered by Pounvn, of New York (p. 382); Banks, of MIassachusetts (p. 385); Ma-larcld, of Tennessee (p. 403); Stevens, of Penntsylvanlia (p. 421), and Orth, of Indiana (p. 420). The addresses il supptort of the substitute are largely historical reviews of the inistances and attendant circumstances wherein the House of Representatives has insisted upon the recognition of the rights asserted in the substitute. It is therefore impossible to abridge them or adequately present the arguments aidvanced in abbrev\iaited form. Tlhe address of Mr. Cullom, thenl a Representative fromn Illinois and now a Senator from that State, sets forth the general r.gu 156 ment in the form most suitable for quotation. Mr. Cullom said (App., p. 473): Is the treaty perfect and complete, or is it unfinished and inchoate and d(ependent upon the very question we are considering, namely, whether we shall make the appropriation? I fully unlerstand the fact tlat Congress can, by mere force of its own will, refuse to make the appropriation; but the question is can it do so consistent with the honor of the nation and its constitutional prerogatives? If the treaty is perfect and complete, so that the nation is bound and may be held responsible by the Russian Government in case of failure to make the appropriation and payment, then I should vote the appropriation. But it seems to me that it is not. The Russian Government knew that the power to raise revenue rested with Congress. There can be no pretense that that Government was ignorant of the provisions of our Constitution. It was well known that Congress would have to l)e invoked, alnd that that branch of the Government was free to act as its nembers mlight choose. It has been the settled doctrine of this country ever since 1794 that Congress has the right to deliberate and carry out or refuse to carry out a treaty as in their judgment might be for the public good, when such treaty contained stipulations which depended upon Congress for their execution. The resolution adopted by the House of Representatives of the Fourth Congress asserted that doctrine, and it has been adhered to ever since. I give the resolution: "Resolrc(d, That it being declared 1y tile second section of the second article of the Constitution that 'the President shall have power, by and with the advice and consent of the Senate, to imake treaties, Iproviie(l that two-thirds of the Senators present concur,' the House of Representatives do not claiml any agency iln making treaties, but that when a treaty stipulates regulations ol any of the subjects submitted by the Constitution to the power of Congress, it must depen(l for its execution as to such stipulations on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases to (lelil)erate on the expediency or inexp)ediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good." This resolution is explicit and clear in its declaration that when a treaty stipulates regulations on any subject which by tlme (onstitution is submitted to the power of Congress, in such cases Congress has the right to delil)erate on the expediency or inexpediency of carrying such treaty into effect. Now, Mr. Speaker, I submit tllat if Congress has the riglt to deliberate and vote andl pass whatever law imax be liecessary to carry out a treaty, where by its terms legislation is necessary, as in thlis case, al aIpproI)riation being necessary before the terms of the contract can be coniplied with in paying tlhe money for the land, or to refuse to enact such legislation, is it not tie inevitable conclusion to which you must come that such a treaty does not becomle the supreme law of tile land until such legislation is had, and that it is a contract entered into between the parties, but not binding upon the Government because it remains in an inchoate condition? Of what consequence is the right to deliberate if after all we are bound at last to comle to but one conclusion, and that to do whatever may be necessary to carry out the treaty? The resolution of 1794 is nonsense if it simply means the Iouse may consider and then vote as the President and Senate desire, or even if it means that we may deliberate and then violate a contract which is claimed to be the supreme law of the land, and to be such a contract as to give the other party the right to demand reparation for a violation. The doctrine of the Constitution and of the resolution of 1794 amounts to more than a declaration of arbitrary power; it amounts to a declaration, in mly judgment, that a treaty which requires the action of Congress to carry it into effect does not become the supreme law of the land until such action by Congress is had. 157 Justice SMcLean, in nmy judgment, took thle correct view of the matter in his opinion found in 5 IMcLean's Reports, page 344. IIe say that — "A treaty is the supreme law of the land only wheni the treaty-,making power can carry it into effect. A treaty which stipulates for the payment of money undertakes to do that which the treaty-mnaking power can not do; therefore the treaty is not the supreme law of the land. To give it the effect the action of Congress is necessary. And in this action the Representatives and Senators act on their own judgment and responsibility, an(d not on tile judgment and responsibility of the treatv-making power. A foreign government may lbe presumed to know the power of appropriating money b)elongs to Congress. No act of any part of the (4overnment can be hleld to be a law which has not all the sanctions to make it law." So, accord(ing to tills decision, thte treaty w-ith Russia for the purchase of Alaska is not the supremle law of the land because it undertakes to (lo that whicl it can not do. Justice 3Marshall also entertained the same opinion. In 2 Peters, page 258, he says: "Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to all act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when tile terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, department, and the Legislature must execute the contract before it can become a rule for the court. " Then, if thle treaty has not yet become thle supreme law of the land, and if we have the right to deliberate and are left perfectly free to make tile appropriation or refuse it, then the question recurs, What ought we do in reference to this appropriation? In other words, ought we to purchase, pay for, and own this territory now? I (ldo not agree to the declaration that tlhe territory is worthless. My opinion is that some (lay the territory will be valuahle. But (do we want it now, and are we in a (condition now to begin a policy of acquisition? The Hotise adopted the substitute; the })ill was passed and sent to the Senate. That body amended the bill by striking out the substitute and returned it to the House. Tle House refused to concur in the amendment, and a conference was ordered. The outcome of the (ontroversy was that the Senate receded, the position of the House was sustained, the bill passed both Houses. and was signed by the President, as follows: Whereas the President of tle United States, on the thirtieth of March, eighlteen hundred and sixty-seven, entered into a treaty with the Emperor of Russia, and the Senate thereafter gave its advice and consent to said treaty, by tlhe terms of which it was stipulated that, in consideration of the cession by tle Elmperor of Russia to the United States of certain territory therein described, the United States should pay to the Emperor of Russia the sum of seven million two hundred thousand dollars in coin; and Whereas it. was further stipulated in said treaty that tile United States./a(ll accept of such cession, and that certain inhabitants of said territory shall be a(lmitted to the enjoyment of all the rights and immunities of citizens of the United States; and Whereas said stip)lations can (not be carried into fll fo)rce an( effect e. cept bi legislation to 'which the consent of both. houses of Congress is necessary: Therefore, Be it enacted by the Senate a.(d IHouse of Representatives of the United States of America in Congress assembled, That there be, and hereby is, appropriated, from any' money in the Treasury not otherwise appropriated, seven million and two hundred thousand dollars in coin, to fulfil stipulations contained in the sixth article of the treaty with Russia, concluded at Washington on the thirtieth day of March, eighteen hundred and sixty-seven. (15 U. S. Stat., 198. ) 158 THE POSITION TAKEN BY THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THIS GOVERNMENT RESPECTING TERRITORY SUBJECT TO THE JURISDICTION OF THE UNITED STATES BUT OUTSIDE OF THE STATES OF THE UNION, AND THE RELATION SUSTAINED BY SUCH TERRITORY TO THE TARIFF LAWS AND STATUTES OF SIMILAR CHARACTER. The original law for the collection of customs, passed July 31, 1789, divided the States into collection districts, )but entirely neglected the territory outside of the original States. The only collector in the Western territory was at Louisville, "whose authority shall extend over all waters, shores, and inlets included between the rapids and the mouth of the Ohio River, on the southeast side thereof." (Act of July 31, 17819, 1 U. S. Stats., p. 34.) The northwest or territorial bank of the Ohio was left unprovided for. Vermont was left without a customs-house until it was admitted as a State, as was also Tennessee; but as soon as either was admitted t port was established therein, evidently out of regard for the equality of commercial privileges gutranteedt the States by the Constitution. It was not until 1799 that the customls laws of the United States \were put in force in any part of the Northwest Territory. (Act of March 2, 17!99, sec. 17: see 1 U. S. Stats., pp. 0(37, 638.) If the result of this omission wias to make unlawfull all and any importations froml Canadai into the Noirthwest Territory, then certainlly the territory was not considered as b)enefited by the Constitution, for one of the )benefits most jealously guarded by the several States was equal privileges in foreign colmmerce. Historically we know that Vermlont and the Northwest Territory carried on extensive trade with Canada, and it is seemingly incontestable that the idea prevailed in those days that prior to admission a s a State, or the extension of the customs laws in. 1799), said territory wLas no more,bound by the tariff relquirements of the Constitution than it was benefited therely. Attention is also directed to the actiol taken by the First Congress in the instances of North Carolina and Rhode Island. The President informed Congress on the 28th of JJanuary, 1790, that North Carolina had ratified the Constitution0 on November 21, 1789; and, again, he informed Congress on the 1st day of June, 1790, that Rhode Island had ratified the Constitution on May 29, 1789. Prior to receiving these notifications Congress? had enacted two revenue measures, to wit, al act for laying duties on goods, wares, an(d merchandises imported into the United States," also, ' aLn act imposing duties on tonnage." Although by such act of ratification both North Carolina and Rhode Island becallle incorporated in the Union of States, Congress saw fit to pass acts extending the provisions of the previous revenue measures over the territory included in North Carolina and Rhode Island. (See 1 Stat., pp. 99, 126.) 159 THE TARIFF IN LOUISIANA. The tre-aty for the purchase of Louisiana was formulated April 30, 1803; approved byN- the Senate in October, 1803; ratified by the President and exchanged October 21, 1803. On October -25, 1803, Gallatini ats Secretary of the Treasury, submittedl a, "Report on the Fijuances." Therein he said: Thle existing surplus reNenue of the Unitedl States will, as has leiie stated, be sufficient to discharge ~60() 000 of that. sum1, and it is expected that the net revenue collected at New Orleamns will be equal to the remaining $,200,000. That opinion res-ts onl thle supp1osition that C ongress, shial Ilplaee that port on the same footing as those of the United States, so that the sam.,e (dities shall be collected there on thle uinportationof foreign mnerchandis~e as are now b)y law levied inl thle United States, and that no (Pities shall be (ollecte(I, either onl the exportation o)f produce or merchandise, frommo New Orleans to any other place, nor onl any articles implortedI inl the Initedl States from the ceded territories or int~o those territories.fromn the United States. (Vol. 1, Reports onl Finances, p). 265, U. S. Treasury.) It is manifest that Gallatin considered that mr must leqyislate in order that "no duties shall be(, collected * * * on any articles imported in the U~nited Staties from the ceded territories or into those territories fr-om the, United States.' Gial latin wrote to WY. C. Claib~oriie, governor, of Mlississippi Jerritomv as followsd: WANT-sfl I N, 21sf October, 180).. 1anSm: You will receive 1v this mail. ins,,tructions,! from the proper department for taking possession of L-ouisiana and1 for the temp~orary governeni(-it of the Jpr.)ViiiQc. It is uinderstood that the. exis,,ting (duties on imports, andI exlports, which loy thle Spanish. laws ale now lev-ied within the p~rovNince, will coiltinue until Congress s:hall have otherwise prm-idle(1. By next. mail 1 exlecet to be aide to write von anl official letter onl that. subject which w ill prolbably reach you liefore you can act upon it. (Writings of Gallatin, vol. 1, l). 167.) Thereafter 1-I. iR. Trist, United States collector- at lFort Adaums, wvas designated as collector of the port of New Orleans. On November 14, 1803, Gallatin, as Secr-eta ry ftm Trieasury, issue C fte'I d an order (liiected to Mr. Trist, wherein, after informing himi of his new appointment, he instructed hmimi as follows: You will also he p~leasedl to observeFirst. That the taxes and( the dluties. to he collectedl under your (lirection are preciselv flue sMamne wNhichi by the existimi, laws or regulations- of Louisiana were dlemnaiilable under the Spanish Government at. the timue of taking possession. Second. That in those taxes andl dtities are included specially those onl imports, exports, transfer of shipping, etc., which were collectedl under those officers whose powers are veste(1 inl you, andl generally all other taxes and duties which mnade part of the general revenue of thte province. Fourth. That von are only to secu re o)r collect (luties accruing after possession of samne by the United States. Tenth. That until otherwise lprovidIed for, the same (luties are to be collected onl the inmportation of goods inl the Mississippi (listrict from New Orleans and vice versa as. heretofore. (Gallatin to Trist, November 14, 1803. See Book G4, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of the Treasury.) 160 On February 24, 1804, Congress passed an act putting in force in the Territory of Louisiana the laws of the United States regulating duties on imports and tonnage. (2 U. S. Stats., 251.) Congress accepted the doctrine acted upon by the Jefferson Administration, and included in said act the following: SEC. 3. And be it further enacted, That so much of any law or laws laying any duties on the importation into the United States of goods, wares, and merchandise from the said territories (or allowing (Irawbacks on the inportation of the same from the United States to the said territories), or respecting the commercial intercourse between the United States and the said territories, or between the several parts of the Unite(l States through the said territories, which is inconsistent with the provisions of the preceding section, be, and the same hereby/ is, repealed; and all duties on the exportation of goods, wares, anld merchandise from the said territories, as well as all duties on the importation of goods, wares, and m erchandise into the said territories, on the transfer of ships or vessels, and on the tonnage of vessels, other than those laid by virtue of the laws of the United States, shall, from the time when this act shall commence to be in force, cease and detertinee: I'Provided, howev'er, That nothing herein contained shall be construed to affect the fees and other charges usually paid in the said territories on account of pilotage, wharfage, or the right of anchorage by the levy of the city of New Orleans, which several fees and charges shall, until otherwise directed, continue to be paid and applied to the same purposes as heretofore. (2 U. S. Stats., sec. 3, p. 255.) Section 12 of said act provided " that this act shall commence thirty days after the passing thereof." (Id., p. 254.) Thereupon Gallatin, Secretary of the Treasury, issued the following: [Circular.] " TREASURY I)EPARTMENT, Februlary 28, 1804. SIRI: As it may tbe some time before yon (an l:e furnished with a Iprinted copy of an act entitled "An act for laying and collecting duties on iumlports and tonnage within the territories ceded to the United States by the treaty of the thirtieth of April, one thousand eight hundred and three, between the United States and the French Republic, and for other purposes," passed on the 24th of the present month, I have deemed it proper, for your government therein, to inform you that by the third section of the said act so nmuch of any law or laws imlposing duties on the iniportations into the United States of goods, wares, and merchandise from New Orleans, which is the only port of entry in the said territories, has been repealed. But as the act in question does not colmmence to be in force until thirty days after its (late, articles which have been or may be thus imported before the 25th of March ensuing must pay the.saie (idties ars heretofore. I am, very respectfully, sir, your obedient servant, A. (GALLATIN. (Book G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, (ffice Secretary of Treasury.) Regarding the construction of this repealing act Gallatin determined as follows: TREASURY DEPARTMENT, lMarch 31, 1804. ROBERT PJRVEAN'CE, Esq., Collector, Baltilnore. SIR: In answer to your letter of the 29th instant I will only observe that, without wishing to establish a principle applicable to other places, it seems proper that the 161 law repealing (Iuties on goods iml)orted from New Orleans should receive a liberal construc(tion, and that no duties should be collected which are not in the most liberal sense of tlhe law justly demandable. In the case of the Comet, the day of arrival in the district where the goods are enterild appears to be the proper date of importation. If, therefore, the vessel arrived in the district of Baltimore subsequent to the 25th of March, I do not think that the goo, s which, by law, are exonerated fronm paymenet of (luty if imported after that day into the United States should be charged with such duty. I al, very respectfully, sir, your obedient servant, ALBERT (. LLATISN. (G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of Treasury.) Jefferson claimed West Florida was included in the Louisiana purchase. Inasmuch as Congress had extended the tariff and navi(gation laws of the United States over the ''territories ceded to the United States" by said treaty, it vwas necessary for him to accord the benefits of said laws to the products and shipping of West Florida; but his Secretary of the Treasury instructed the collector of the port of New Orleans as follows: You will therefore consider all the said territory, whether on Lake Pontchartrain or on the Mississippi, in the salne light as that part of it which lies east of the Pontchartrain Lake; that is to say, that with the exception prescril)ed in the two first rules laid down in my letter of the 27th ultino, in relation to the produce and shipping of the sai(l disputed territory, you are to consider Baton Rouge and other settlements now in possession of Spain, whether on the Mississippi, Iberville, the lakes, or the sea coast, (is.foreiyg port.s. (See letter Gallatin to Trist, March 1, 1, 104, Book G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of Treasury.) In December, 1806, Gallatin, as Secretary of the Treasury, sulbmitted a " Report on the Finances." Included therein was his estimate of the probable revenues to be derived by the Government for the ensuing nine years. In concluding that portion of his report, Gallatin says: And this must be considered as a very Iloderate computation, since it (oe.s not include et heee lreeie deoi ed from New Orleaos. (Vol. 1, Reports on the Finances, 1). 335, U. S. Treasury.) Evidently Gallatin considered that territory as something separate and apart from the United States. The act of February 24, 1804, entitled 'An act for laying and collecting duties on imports and tonnage within the territories ceded to the United States by the treaty of the 30th of April, 1803, between the United States and the French Republic," contained the following: SEC. 8. Anid be it.firther enacted, That during the term of twelve years, to coimmence three months after the exchange of the ratifications of the above-mentioned treaty shall have been notified, at Paris, to the French Government, French ships or vessels, coming directly from France or any of her colonies, laden only with the produce or manufactures of France or any of her said colonies; and Spanish ships or vessels, comiing directly from Spain or any of her colonies, laden only with the 1394-03 11 162 produce or manufactures of Spain or any of her said( colonies, shall be admitted into the port of New Orleans, and into all other ports of entry which may hereafter be established by law within the territories ceded to the United States 1w the ab}ovementioned treaty, in the samle llanner as ships or vessels of the United States conling directly fromll France or Spain or any of their colonies, and without being subject to any other or higher duty on thle sai(l produce or manufacture than by law now is or shall at the time be payable by citizens of the United States on similar articles ilmported from France or Spain or any of their colonies, in vessels of the lnited States, into the said port of New Orleans or other ports of entry in the territories above mentioned; or to any other or higher tonnage duty than 1)! law now is or shall at the time be laid on the tonnage of vessels of the 'nite(l States coming fromn France or Spain, or froni any of their colonies, to the said port (of New Orleans or other ports of entry within the territories above lmentioned. (2 U. S. Stats., 253.) The provisions of this section gave New Orleans an advantage in the importation of French and Spanish products over all the ports of the States of the Union. Such advantage could only be justified upon the theory that the port at New Orleans was without the limits wherein the Constitution required that duties should be uniform. FLORIDA. The fifteenth article in the Florida treaty was as follows: The United States, to give to His Catholic Majesty a proof of their desire to cement the relations of amity subsisting between the two nations, and to favor the conmmerce of the subjects of His Catholic Majesty, agree that Spanish vessels, coming laden only with productions of Spanish growth or manufacture, directly froln the ports of Spain or of her colonies, shall be admittel, for the term of twelve years, to the ports of Pensacola and St. Augustine, in the Floridas, without paying other or higher duties on their cargoes, or of tonnage, than will be paid by the vessels of the United States. During the said term no other nation shall enjoy the same privileges w-ithin the cedle territories. The twelve years shall cominence three months after the exchange of the ratifications of tills treaty. The advantage over the ports of the several States of the Union thus stipulated for Pensacola and St. Augustine was rendered effective )y the act of March 3, 1821, },y which the treaty was carried into effect. Section 2 thereof provided thatThe laws of the United States relating to the revenue aln its collection, sublject to the modification stipulateld by the fifteenth article of the said treaty, in favor of Spanish vessels and their cargoes * * * shall be extended to sai( territories. (3 U. S. Stats., p. 639.) Here, again, we find both the Executive and the Senate, in exercising the treaty-mlaking power, and the Congress, in legislating for territory not included in the boundaries of the several States, dealing with said territory as being without the area covered by constitutional requirements for uniformity of duties. It also presents another instance where Congress and the Executive considered it necessary for Congress to act in order that the revenue laws of the United States should be extended to newly acquired territory. 1 C3 It appears that in 1819, after the Florilda treaty had been concluded, but prior to ratific-ation and exchange, a q(uestion arose, ill relation to exports from Florida into New Orleans, and the Treasury I)epartment decidedThat all goods which have been (r may be ilmportedl froml lPensacola b)efore an act of (olngress sh1all be) passed erecting it into a (ollectiondlistri(t, and( authorizing the al)l)(intilent (of an officer to reside thereat fo)r the purpose of superiitending the collection of duties, will 1)be lialle to dlutv." This decision of the Treasury D)epartmlent was called to the attention of the United States Supreme Court in Flemi}n et atl. e'. Pa1'1e, How., );3(,. In regard thereto the court say (f`17): This construction of the revenue laws has beeui uniformlly given by the admlinistrative (lepartleint of the (Governmient in every case that. las coume before it. And it has, indeed, been given in ('ases where thlere apl)iears to have 1 een stronger ground for regard(lig thle llace of shipment. as a domestic I;ort. For after Flridlla hla, been ceded to the I nited States, anld the forces of the United States had taken lpssessio i of Pensacola, it was (leci(led by the Treasury Department that goods imported from Pensacola before an act of Congress was l)assed( erectinig it iito a (0ollection district and autlorizing the app)ointment of a collector were liable to (luty. That i.4, that although IFloridla had, by cession, actually becomse a part of tlhe IUnitel States, and was in our pos.session, yet, under our revenue laws, its ports must be regardledl as foreigmi until tiey were establishe(l as (domestic by a(t o)f Congress, and it app))ears that this decision was sanctionel at thle time by thle Attornev-(;eneral of thle United States, the law officer of the (lovernment. I am unable to determine why the court say "Fl(irid(l had. lv cession, actually become a part of the Utnited States, alld Was in our possession," in 1819), since the treatv was lnot ratified by the Senate until February 22, 1821, and the formal transferl of sove{reignty took place on,July 17, 1821. On the argument of Fleming et al. '. Pa'ge, I)aniel \Webster, il resisting- the force of the decision of the Treasury I)elpartment, above set forth, contended that the attorneys for the (Govern11 ent misconce(ived the reason on which. the decision was based. That said (decision rested on tile fact that at thle tilile thle goods were1 shipped firol Pensacola tlhe territory was still subject to the sovereiglty of Spaill. In supp)ort of tills contention VWeb),ster refei:red to the o()illion of Attorney(Gelerlal airt in the case of tle 01/;,, 'BPrwan/i, deliveredl Aug(ust 20, l 2)1. (t Op. A. (T., p. 4S3.) The court did inot sustain Webster in this contention; and tliev say (p. 617): It appears that this (lecision was sanctioned at tlhe time by the Attorney-(Teneral of the United States, tlhe law officer (of tlhe (overnment. "I am unable to secure a copy) o(f tllis circular, although search has been made therefor at the Treasury Department. The statement of fact and quotation are derived from the circular issued )by the Treasury Departmient on July 29, 1845, with reference to Texas, as set forth in this meniorandum under the heading "Texas," post, p. 165.) 164 If tlis utterance of the court had reference to the opinion of Attorney-General Wirt in the case of the Olive Branc(h', the court overlooked the facts. The decision of the Treasury Department related to certain goods shipped from Pensacola to New Orleans in 1819. he opinion of the Attorney-General was not given until August 20(), 1821, and related to goods shipped from St. Augustine to L'hilad(elphia July 14, 1821. It is possible that the full text of th, Treasury decision in 1819 or the files in the Olie Bract/c] case might straigllten out this tangle, which in a measure weakens the otherwise strong case of Fleming r. Page. In trying to cover the ground of this investigation it is necessary to examnine the opinion of Attorney-General Wirt in the Olive Br'oanch case. That case arose as follows: On July 14, 1821, the 0lic? Branch cleared from the port of St. Augustine, East Florida, and subsequently arrived at Philadelphia, where its cargo was discharged. The owner claimed the cargo was exempt from customs, and the collector at Philadelphia referred the case to the Secretary of the Treasury for decision; he requested and received the opinion of the AttorneyGeneral, not only on the single question presented by the cargo of the Oire IBrnch/, but also on the several general questions which would probably arise thereafter. (1 Op. A. G., 483.) The Secretary of the Treasury decided that the cargo of the Ol1rve Bratnch was subject to duties. If I have secured a proper understanding of the opinion of the Attorney-General, the only portion thereof which related to the Olice Branch was the opening paragraph, as follows: I understand that possession of East Florida was not delivered to the United States until the 17th of last month, whereas the Olive Branch, as appears by her papers, cleared out from the port of St. Augustine on the 14th of the month. Now, according to the doctrine laid down in the case of the Fartcl, Butler, master, and reported in 5 Robinson, 97, the jurisdiction and authority of the forner sovereign continued in full force until possession of the ceded territory had actually passed. If I am right, then, as to the time of delivery, the cargo of the Olire Branch. was imported into Philadelphia from a foreign port or place, and the case falls completely within the control of the act of the United States to regulate the collection of duties on imports and tonnage, subjecting the vessel, cargo, the master, and owners to all the penalties and forfeitures prescribed by that act for a breach of its several regulations. If it be true that this is all of the opinion which relates to the cargo of the Olive Brtanch/, Mr. \ebster was apparently correct in asserting that Attorney-General Wirt, in the special instance before him, based the liability upon the fact that sovereignty over Florida had not been actually and completely transferred to the United States at the time the Olive Branch sailed from St. Augustine. In the absence of a statute providing for the contrary it is undoubtedly true that goods imported into the United States from a country to which the sovereignty of the United States has never attached are subject to duties. This is the full extent of the opinion rendered by Attorney-General I 1(3 Wirt. In sai(l opinioiilhe expressly calls attention to the, advisability of deciding ~'each case onl its ownl circumstanices as it shall ari11se anIld the "' difliculty and daniger, 1)oth to individuatls and to the public revenue, in ani attellpt to preOjudge, them by genierail rules." The converse of the propositioni set forth ini the paragraph abhove quoted from the, opinion of Attorniev-G'eneral Wir't is by 110 meanIls established, and there, is nio evidence that Attorn-ey-Genierail Wirt entertained it. The views expressed by Mr. W1ir't during the Caibinlet discussions of the conitroversy lbetweeni Jacksonl and roinenitin., indicate the conitrary. (.5 Adamls' Mlemoirs, pp. 3(37-373.) The decision of the court ini Fleminig et al. 9% Pagtoe is a denialI that the test of liability for customs is the sov-ereignity exercisingo jurisdictioni at the tnionmend place of shipment. Stich wa~s the test sough-It to be established 1w) Mr. WAehster in his argumenAt (9 How., (U12). but the, court refused to atlopt it. Thle court refer with approval to the decision of the Treasuiry IDepartmenit ini 1819). S~aid decision explicitly recites the ground onl which it stan-ds, and should 1 e,allowed to remain there. It is man-ifestly i 1mpropIer to attempt to lbase it onl a reason apparently not conside red 1 y the Secretary of the Treasu m'rv in arrivingc at the conclusion announced. The Fifteenith Congress (1819) evidenitly did niot consider thatt the, question of liability depenidedl alon-e onl the trans fer of sovereignity behing accomplished. While the ratification of the Florida treaty was 1)eniding' before the Spaniish Cortes, the Conig)ress of the United States passedtaila act pm'ovidino', that "' the, law~s of the Uniited States relative to the collection of revenue *shall be (extended to saidl territories." Further pL'ovilsion wa~s madeThat, this act shall take effect and be in forc~e whienevcr the aforcsaidI treaty 1)r0 -vidling for the cession of sail territories to the UnIited Statcs shiall. hwI.e been ratifiedI by tile King of Spain andI thic ratificationss exchanged anIl thic King of Spain *4o1l1 be!"odi, to xsurrender said territory to tie U~nitedl States. ***(Act (if March 3, 1819, V.. Stats., pp. 523, 524.) TEXAS. Mach 1, 1845 Conioress adopted at joint resolutioni for the annexationl of TexIIIms (5 Statt., 797). Subsequentfly the convenitioni of Texas-aimd the congress of that repnlblic aolopted a similar' resolution. Thereaf ter Robert J. WNalker', Secretatry of the Treasury under Presidenit Polk, issued the followinig' order: TREASuity Di~i', RTM ENT,.J1l! 2?9,18. Th collectors, (ond others oficer of the cust~oiN: The President, of the United States has received official intelligence that the convention, as well as- the-congrress of the republic of Texas, have sanctioned and1 -adloptedl the joint resolution of the Congress of the United States of the 1st of March l&at for thie alInission of Texas as a State of the Union. By the twventy-fourth section of the act. of Congress of the United S,~;ates of the 30th of August, 1842, it is; provided: ''"That it. shall lie the duty of all collectors and other 166 oflicers of tile customns to execute and carry into effect all instructions of the Secretary of the Treasury relative to the execution of the re\venue laws; and in case any difficulty shall arise as to the true construction or meaning of any part of such revenue laws the decision of the Secretary of the Treasury shall be conclusive and binding UI)O1n all such collectors and other officers of the custolms." In conformity with this provision of the law it becomes my duty to cornmunicate the views and instructions of this l)epartlllent up)on various important questions arising out of the neN- relations betweenI Texas and the United States. First. Although tlhere is now a solemn compact obligatory upon both parties for the admission of Texas as a State of the Union, vet, until further action of the Congress of the United States upon this subject, and instructions founded thereon from this D)epIartment, you will collect (luties as heretofore upon all the imports fronm Texas into the United States. A similar question arose in relation to exports from Florida into New Orleans in 1819, when it was decided by the Treasury Department "that all goods which have been, or umay be, imported from Pensacola before an act of Congress slhall be passed er'ecting it into (a collection district anll authorizing the appointment of an officer to reside thereat for the purpose of suplerintending the collection of duties will be liable to d(uty." (Book T, October 10, 1843, to February 4, 1848, Circulars, Office Secretary of Treasury. ) O011 )ecember 29, 1845, Congress passed an act the first section of which was as followS: That all the laws of the United States are hereby (leclared to extend to all over, and( to have full force an(l effect within, tl)e State of Texas, admitted at the lresent session If Congress into the Confederacy anld Union of the ITnite(l States. (9 1U. S. Stats., ). 1.) Ol I)ecember 31, 1845, Congress created a collection district enmbracin1g tlle State of Texas. (9 1.S. Stats., p. 2.) NEW MEXICO AND CALIFORNIA. The [United States acqluired title to New Mexico and (:California by (ollu(luest. The conquest of New Mexico was accomplished ~by the campaigln of:1846 (Leiterlsdorfer,. Wei)b, 20 How., 176); as was also that of California (Cr oss v. Harrison, 16 How., 1'90). Althouoh the sovereignty allnl jurisdiction of the United States perImanently attached to this territory, the gov-erment of civil affairs therein co(ntillued to exact customs according to the, schedules, rules, atIld reoulations established by imilitary orders. This action was sustained 1,- the Supremne Court of the Ulnited States. (Cross io. liarrison, 16 tIow., 190.) The treaty of pelace with Mexico was ratified and exchanged May 30, 1848, but the officials in charge of c('stoms 'affairs in Californial continued until the fall of 1848 to exact customs pursuant to the requirements of the mlilitarly order issued by direction of the President. This action, also, was sustained 1)y the Suprleme Coturt of the United States. (Cro(ss ~,. Hlarlison, 16 I-ow., 189.) On Octolber 7, 1848, Robert J. Walker, Secretary of the Treasury under President Polk, issued the following circular: 167 TREASURHY DEPARTMENT, October 7, 1848. On the 30tn of May last, upon the exchange of ratifications of our treaty with Mexico, California became a part of the American Union, in consequence of which various questions have beein preseiited by merchants and collectors for the decision of this Department. By the Constitution of the United States it is declared that "All treaties niadle, or swhich shall be mlade, under the authority of the Ulnited States shall be the supreme law of the land." By the treaty with Mexico, California is annexed to this Republic, and the Constitution of the United States is extended over that Territory and is in full force throughout its limits. Congress, also, by several enactments subsequent to the ratification of the treaty, have distinctly recognized California as a part of the Union, and have extended over it in several important particulars the laws of the United States. IUnder these circumnstances the following instructions are issuedl by this Department: First. All articles of the growth, produce, or manufacture of California shipped therefrom at any time since the 30th of Mayv last are entitled to admlission free of dluty into all the ports of the United States. Second. All articles of the growth, produce, or manufacture of the lnitedl tates are entitled to admission free of duty into California, as are also all foreign goods which are exempt from duty by the laws of Congress, or oil which goods the duties prescribed by those laws have been paid to an collector of the United States previous to their introduction into California. Third. Although the Constitution of the United States extends to California, and Congress have recognized it by law as a part of the I nion and legislated for it as such, yet it is not brought by law within the limits of any collection district, nor has Congress authorized tlIe appointment of any officers to collect the revenue accruing on the import of foreign dutiablle goods into that Territory. Under these circumstances, although tllis D)epartment may be unable to collect thle duties accruing on impll)ortations fr(min foreign countries in California, yet, if foreign dutiable goods should be introduce(l there and shipped thence to any port or place of the United States, they will be subject to duty, as also to all the penalties prescribed by law when such imIportation is attempted without the paylimenit of lduties. R. J. WALKER, Se(rettr/ of tin T7re(sttqr. It is worthy of attention that while this circular declares that "By t/c: tfoltty et/ilt _Je;i(co California is annexed to this Republic, and the Constitution of the United States is extended over that territory and is in full force throughout its limits," the Admllliistration was unwilling to rest its action on that declaration, although if the theory were correct, it afforded ample justification. But the theory was a new one and its projector had been unable to secure recognition for it, in the existing Congress. It was diametrically opposed to the theories and practice theretofore prevailing. Therefore the contemplated action was soutght to be justified by showing it to be in harmony with the theory that Congress must extend the laws of the United States to newly acquired territory. To this end the order contained the following: (Cooq/ess ilso, by sereral eiactimeot.s su.tbseqoent to the ratitfic(tioo of the treat!/, h(ore distioctl, recognized Colifornia a(s ( p]art of the Uoniol, (to)d hore extended over it io several ioportoiat portictlars the lowas of the Uni ited St(tfes. U[)der these circumlsttOces, etc. The laws referred to were the act of August 12, 1848 (9 U. S. Stats., p. 301), and act of August 14 1(S48 (9 U. S. Stats., p. 320). 168 The Thirtieth Congress did not accept the view expressed in the Walker circular, and at its second session passed "An act to extend the revenue laws of the United States over the territory and wUaters of Upper California, and to create a collection district therein,"' approved March 3, 1849 (9 U. S. Stats., chap. 112, p. 400)). Historically we know that the Polk administration did not act in California in accordance with the doctrine announced in the circular of October 7, 1848. If the Constitution and laws of the United States were in force in California, then it followed that the landing of foreign products in that territory, excepting at a port of entry, was prohibited by law. Since there were no ports of entry in the territory, no foreign products could be landed. Yet in October, 1848, California was the objective point of ships sailing on every sea, bringing passenlgers attracted to that territory by the discovery of gold therein, and these emigrants and their goods were not refused admission. In none of his messages to Congress did President Polk advance the theory given form and substance by the Walker circular. In his first annual message (December 2, 1845) President Polk. with reference to the annexation of Texas, said: The Executive Government, the Congress, and the people of Texas in convention have successively complied with all the terms and conditions of the joint resolution. *X- * * * * * * Questions deeply interesting to Texas, in common with the other States, the extension of our revenue laws and judicial system over her people and territory, as well as measures of a local character, will claim the early attention of (Congress. * * * (Messages and Papers of the Presidents, vol. 4, pp. 386, 387.) In his second annual message (December 8, 1846) President Polk said: It will h)e important during your present session to establish a Territorial governmnent (land to f'.tefd the jurisdictimo and(- I'sthe the United States over the Territory of Oregon. * * * The establishleent of custonm-hiouses * * requires legislative autlority. ( Messages and Papers of the Iresidents, vol. 4, p. 504.) In his third annual message (December 7, 1847) President Polk, with reference to Oregon, said:' Our citizens w-ho inhabit that distant region of country are still left without the protection of our laws or ally regularly organized government. * * * They should have the right of suffrage, be represented in a Territorial legislature anld by a Delegate in Congress, and possess all the rights and privileg;_s which citizens of other portions of the Territories of the United States have heretofore enjoyed or may. nowV enjoy. Our judicial system, revenue laws, laws regulating trade and intercourse with the Indian tribes, and the protection of our laws generally should be extended over them. (31essages and Papers of the Presidents, vol. 4, pp. 553, 559.) In his message to Congress, dated July 6, 1848, notifying that body of the iatifications of the treaty of peace with Mexico on May 30. 1848, President Polk said: The immediate establishment of Territorial governments and the ex.rtension of our laws over these valuable possessions are deemed to be not only important, but indis 169 pensable to preserve order. '* * Foreign commerce to a considerable amlount is now carried on in the ports of Upper California, which will require to b)e regulated by our laws. -Is.oo, 0,is our syPte, shall be e.xctended oer thi.s o'0oo1,rcf' a reveniue of considerable amount will l)e at once collecte(d. For these and other obvious reasons I deem it to be nmy duty earnestly to recomlnen(l the action of ('oWnqrcss o, thel sub)ject at the present session. (Miessages of the Presidents, vol. 4, pp). 588, 589.) In his annual message to Conglress dated I)ecember 5, 1848:. I'esident Polk said: No revenue has b)een collected at the ports inl California becau-se Collgress faile(t to authorize the establishment of custom-houses or the appcointmellt of officers for that purpose. (AMessages of the Presidents, vol. 4, p. 638.) In the same messagoe President Polk further said (lb.. p. 643): It will be importalnt to cxtend( our revenue laws over these territories, andl especially over California, at an early period. There is already consid(eral)te comllerce with California, and until )ports of entry shall )e establishedl anl( c(llectors al- p>inlted no revenue can be received. Thereupon Congress passed 'An act'to extend the revenue 1:as of the United States over the territory and waters of Upper California. and to create, a collection district therein." approved Alarch ). 1s49. (9 U. S. Stats., chap. 112, p. 400.) Mr. Polk retired from office March 4, 1849, leaving to hlis successor the adjustment of the complications which arose when Congress ascertained that the Executive had attemlpted to deal with California and New Mexico as being territory bound and benefited by the Constitution and laws of the tUnited States. The inhabitants of California and New AMexico, being adlvised,by the Walker circular that "by the treaty with MIexico * the Constitution of the United States is exten(led over that territory." llaturally arrived at the conclusion that thle provisions of the Constitution guaranteeing a repu})lican forml of government and securll'ilg rel)l'resentation in Congress were as potent as the requirements of the Conistitution regarding uniform duties and imlposts. If Cong'ress were without discretion as to the one, how could it exercise discretion as to the others,? Therefore the inhabitants, without waiting for Conlgress to authorize thenl so to do, proceeded to organize anl indtepend(ent State government, adopt a constitution, and elect Senators and Representatives in Cong1ress. When the mllatter camle before Congress, both tle Senate and HIouse of Representatives refused recognition to tlhe credentials of the gentlemen claiming to be the Congressional delegaltions fronl said " States." The numerous ''enabling acts" wvhereby the creation of States h1as been authorized, and the v(arious acts whereby the States so authorized to be created were thereafter admitted into the Union of States, show how universally and constantly it has been considered that the rights in relation to governmient of territory belonging to the United States are to be eonferrcd or yq'(nted by Congress, and do not proceed flrom self-operating provisions of the Constitution. 170 Pr'esident Taylor il his first annual message (Iecember 4, 1849) said: A collector has been appointed at San Francisco under the act of Congress extending the revenue laws over California, and nleasures have been taken to organize the custom-houses at that and the other ports mentioned in that act at the earliest period practicable. The collector proceeded overland and adlvices have not yet been receivel of his arrival at San Francisco. Meanwhile it is understood that the customs have continued to be collected there by officers acting under the military authority, as they were during the administration of my predecessor. It will, I think, be expedient to confirm the collections thus made and direct the avails (after such allowances as Congress nmay think fit to authorize) to be expended within tlhe Territory, or to be paid into the Treasury for the purpose of meeting appropriations for tile improvement of its rivers and harbors. (Messages and Papers of the Presidents, vol. 5, p. 19.) ALASKA. The treaty for the purchase of Alaska was proclaimed June 20, 1867. (15 Stat. L., 539.) On April 6,1868, Mr. McCullough, then Secretary of the Treasury, addressed a lettel to the collector of the port of New York wherein he acknowledged receipt of a request from the Russian minister for the free entry of certain oils shipped from Alaska to San Francisco and froml there reshipped to New York. In response to this request Mr. McCullough said: The request for the free entry of said oil was made on the ground that the oil was shipped from Sitka after tle ratification of the treaty by which the territory of Alaska became the property of the United States. The treaty in question was ratified on the 20th of June, 1867, and the collector at San Francisco has reported that the manifest of the vessel shows the oil to have been shipped from Alaska on the 6th day of July, 1867, and that the shipment consisted of 52 packages. Under these circumstances you are hereby authorized to admit the said 52 packages of oil free of duty. The views expressed by the Secretary of the Treasury were also entertained by the Secretary of State, William H. Seward. In a letter dated January 30, 1.869, Mr. Seward said: I understand the decision of the Supreme Court in the case of Harrison?. Cross (16 How., 164) to declare its opinion that, upon the addition to the United States of new territory by conquest and.cession, the acts regulating foreign commerce attach to and take effect within such territory ipso facto and without any fresh act of legislation expressly giving such extension to the pre-existing laws. I can see no reason for a discrimination in this effect between acts regulating foreign commerce and the laws regulating intercourse with the Indian tribes. On July 27, 1868, Congress passed an act entitled "An act to extend the laws of the United States relating to customsl, commerce, and navigation over territory ceded to the United States by Russia, to establish a collection district therein, and for other purposes." (15 Stat. L., 240.) The first section of this act extended the laws of the United States relating to customs, commerce, and navigation to and over "all the mainland, islands, and waters of the territory ceded to the United States by the Emperor of Russia." In connection with the course pursued by the administration of 171 President Johnson in the instance of Alaska, it is advisable to recall that. President Johnson., prior to the time Alaska was acquired, had insisted that the Executive possessed the authority to determline what relations to the Federal Government of the United States should be sustained by the territory and inhabitants of the late rebellious States. If his position were well taken, it followed that, the treaty having been ratified by the Executive, there remained nothing to be done to conmplete the incorporation of Alaska into the United States. COMPARISON OF THE CONSTITUTIONAL REQUIREMENTS FOR UNIFORM TARIFF LAWS WITH THE REQUIREMENTS AS TO UNIFORM LAWS ON INTERNALREVENUE AND DIRECT TAXES. Under the Constitution, the internal-revenue laws should l)e as universal and uniform in application as the tariff laws. The first internal-revenue tax on spirits distilled in the United States was levied by the act of March 3, 1791, which, for purposes of collection, provided "that the United States shall be divided 'into fourteen districts, each consisting of one State." (1 U. S. Stats., sec. 4, pp. 1.9), 200.) Although said act did not prohibit the distilling of spirits except in compliance with said tax regulations, no provision was made for the collection of said tax in the territories not included in the boulndaries of the existing fourteen States. It was not until 18S6 tlhat the internal-revenue laws were extended to apply to all places "within the exterior borundaries of the 'nited States." (15 U. S. Stats., sec. loT. p. 1);7.) rlThe territories thus subjected to the provisions of tlle internalrevenue acts were the Indian reservations land the lands of the ci ilized tribes. which theretofore had not been invaded -b the collector of intern11l-revenuel taxes. The provisions of the Constitution for direct taxation, instead of requiring that direct taxes shall be universal and uniform, requires that they shall be ''apportioned amongl the several States which malllty be included within this Union, according to their respective numbers, which shall be determined" by enumeration. (Art. 1, sec. 2, clause 3.) This provision is apparently coextensive with that relating to custonms. The two clauses must be taken together, and the fact that one in requiring uniformnit mentions the United States as a whole, and the other in prescribing a rule of proportion among the several parts refers to the taxable area distributiv-el, can not be taken to mean that the limlits of the taxable area in the two cases are different. In the first twenty-five years of the Government's existence, under the Constitution, Congress provided for several levies of direct taxes, which were imlposed solely on the States. Finally, one was extended to territory (District of Columbia), and in upholding it Chief Justice 172 Marshall held that while Congress n,;//yt include the Territoriies in imposing a direct tax, Congress were not required to do so. (Loughborough v. Blake, 5 Wheat., 317.) If, as Chief Justice Marshall held, the Constitution allows Congress discretion in fixing the area to be affected by direct taxation, rb confining the direct tax to States or extending it to include the Territories, does not the Constitution permit a like discretion in fixing the area affected b) indirect taxation? Attention is also directed to certain legislation of Congress relating to the United States Bank and Louisiana. The original charter of the bank authorized the directors to establish branch banks "wheresoever they shall see fit within the United States." (Act Feb. 25, 1'!71 1 U.. Stats., sec. 15, p. 195.) Upon the acquisition of Louisiana the bank desired to establish a branch in New Orleans. To enable it to do so Congress passed the following act: AN ACT suppllementary to the act intituled "An act to incorporate the subscribers to the Bank of the United States." Be it enacted b,! the Senate (tnd HIotse of ilepresenflatires of the Uiited,Sttes. of' America in Congress asse1mbled, That the president and directors of the Bank of the lUnited States shall he, and they are hereby, authorized to establish offices of discotunt and deposit in any part of the Territories or dep)endelcies of the United States, in the manner and on the terms lrescribed by the act to which this is a supplement. Approved March 23, 1804. (2 U. S. Stats., p. 274.) The Constitution requires thatFull faith and cre(lit shall I)e given in each State to the public acts, recordls, and judicial proceedings of every other State. (Art. 4, sec. 1.) The First Congress (1790) passed an act providingThat the records and judicial proceedings of the courts of any State shall be proved or admitted in any other court ';ith;u the 1nited lSt(ttes by the attestation * * * And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court i'ithin. the lUnited States as * * (Act of May 26, 1790, 1 I. S. Stats., p. 122.) When the province of Louisiana was acquired, it was of course necsary to secure a like recognition in that territory for such pulblic acts, records, and judicial proceedings. To accomplish this the Eighth Congress (1804) passed "An act ',wp])C',e(tilary to the act entitled,' etc., being the act al)ove referr(ed to. This act specifically divided all territory under the sovereignty of the United States into three classes, as follows: (1) States of the Union. (2) Territories of the United States. (3) Countries subject to the jurisdiction of the United States. This classification appears in section 2 of said act, which is as follows: That all the provisions of this act and the act to which this is a supplement shall apply as well to the public acts, records, office books, judicial proceedings. courts, 173 anid ofi~es of the resp~ective Te rritories of the United States and coontries sulbject to the Jur'isdiction of the Ulnitedi States as to the public acts, records, office 1)ooks, judicial proceedinigs, courts, and offices of the several States. (Act of March 271, 1804, 2 U. S. Stats., pp. 298, 299. ) This classification, adopted by the Eighth Congress and approved hr7 President Jefferson, is preserved to this dav. Sections90 and 9063, Revised Statutes of the United States' (1878), are as follows:.905. The acts of the legislature, of any' State or Territory or ano coiontrif snthjec to he juisdic4ition~ of the, Un~ited States, etc. 906. All records and1 exelnp~lifications of books which. mnay be kept in. any public office of any State or Territory or anty cotontry soibject to tin jitriodiction, of the Uniited States, etc REPORT ON THE RIGHT OF SPAIN TO ACCEPT A RENEWAL OF ALLEGIANCE TO IT BY INDIVIDUAL INHABITANTS OF THE TERRITORIES ACQUIRED BY THE UNITED STATES AS A RESULT OF THE SPANISH-AMERICAN WAR, AND TO REINSTATE SUCH INDIVIDUALS IN SPANISH CITIZENSHIP. [So~binitted June 24, 1901. Case Nn. 425. D)ivision nf Insular Affairs, War Department.] SYN'OPSIS. 1. The lprovisions of the royal decree of Spain ('May 11, 1901) do) not infringe upon the rights of the United States resp)ecting the allegiance of the inhabitants of the \islands affectedl by the treaty of Paris, 1898. 2. The provisions of said royal decree don not violate the provisions of said treaty'. Swll": 1 have the honor to acknowledge and comply -with youer request for a report ofl the aIbove-entitled subjec' t, presented as follows: The State D)epartment transmits to the Secretary of War a copy of a royal decree of Spain, dated MANN 11. 1,901, declarming the law of Spain. on. the subject of tile change of citizenship of the inhabitants of the territories ceded or relinquished by tile treaty of Paris, December 10, 1898, and the procedluIe by which persolls who larte, lost their Spatnish citizenship may recover it. In tile letter transmitting said decree the Acting- Secretary of State, Hon. LDavid J. Hill, say sSome o)f the articles of this tiecree do not appear to lbe in harinony with the stipulations of the treaty', but the aplparent conflict is probalbly intended to be saved 1by the provisions of Article V. (NOTE.-Inl the copy of decree transmitted by the State lDepartment the article imrne(liately succeeding article 4 is not numbered, and the one succeeding that is numbered 7. ) The examination and report desired by the Secretary of War is understood by the writer to be in respect of the following questions: 1. Do the provisions of -said royal decree of Spain (May 11, 11901) inf ringre upon the rights of tile United States in the matters with which said decree deals? 2. Do tile provisions of said royal decree violate provisions of the treaty of Paris (1898)? 174 I am of opinion that both questions are to be answered in the negative. The provisions of said decree relate exclusively to citizenship uindei the Government of Spain. They declare the willingness of thatt (:overnment to confer citizenship on certain classes of individuals, 1)l'ovided such individuals follow a certain procedure whereby would ibe evidenced the desire of such individuals to accept such citizenship. No attempt is made to force Spanish citizenship upon any person unwi\illiing to assulme it. Apparently the decree goes no further than to dec(lare that the prlovisions of articles 19', 21, and 23 of the civil code of Spain are applicable to the cases of former citizens of Spain whose citizenship and appurtenant rights were affected by tlhe treaty of Palris. Sai(l articles ar(e as follows (Laws of C(ulba. Porto Rico. tland the Philippines, vol. 1, W\7i Dept. Trans.): ART. 1. The children of a foreigner born in Spanish possessions iiunst state, within thte ear followilg their majority or emancipation, whether they dlesire to, elljoy the citizenshipl of Spaniards granted them by article 17. * - * * * * * * * ART. 21. A Spaniard who loses his citizenshilp 1\y acq luiring tlhe nationality of a foreigni (ountry c(an reco\ver it uponll returlilng to the Kingdoill by dleclaring to the oflicial in cllharge of the civil registry of the domicile which lie elects that such is his wish, in order that the proper entry mnay be la(le, an-d by renouncing thle protection of the flag of said country. * * * * * * * ART. 23. Any Spaniard who loses his citizenship b)y acceptinlg emp)loynment from any other government, or by entering the armed service of a foreign power without the King's permission, can not recover the Spanish nationality without previously obtaining the royal authorization. The civil code of Spain, including these articles, has been in force in the Spanish Peninsula since May, 1888, and was extended to Cubta, Porto Rico, and the Philippines )by decree dated July 31, 188!9. The existence and enforcement of said provision of said law of Spain have been tacqulies{ed in.)by the United States, without challenlele tlduring the period indicated, and tit the present time is not objected to when applied to indi-idual residents or citizens of the States of the Union who for any reason desire to be reinstated in Spanish citizenship. This decree does not ordain new laws nlor provide new tests or procedure. It simnpl y declares the willingness of Spain to treat its former subjects in the territories ceded or relinquished in the treaty of Paris in the same way it does its former subjects in other i)ortions of the globe. In adopting said provisions of said civil code Spain asserts a right which the United States has always (contended belonged to eaclh mlemlher of the family of nations. Fronm its inception this (Governllllent has insisted that the right of a man to confer his pernianent allegiance upon a sovereign was -a natural right in the exercise of which tlhe iman was a free agent. This right of expatriation was the subject of an 175 elaborate opinion by Attorney-General Cushing in 1856). Therein he said: The doctrine of absolute and perpetual allegiance, the root of the denial of any right of emigration, is inadmissille in the United States. It was a matter involved ill an(l settled for us byr the Revolution, which founded the American Union. (8 Op). Atty. (4en., p. 139. See also 9 Op. Atty. (;en., p. 356; Atty. (Gen. Black.) The right of expatriation was declared })y Congress to ])e a natural and inherent one, in this country, by act of July 27, 1Sf S. (15 Stat. L., p. 223, chap. 249; sees. 1999, 2000, U. S. Rev. Stats.) The existence of the right of expatriation establishes the correlative right of the sovereign to accept the proffer of allegiance. The United States is equally comlnitted to the doctrine that an independent state may tender citizenship to any or all persons upon stuch terms and conditions as it sees fit to adopt, and, in so doing. is not accountable to any other state. The United States in negotiating and entering into the treaty of Paris did not attempt to limit or prohibit the exercise of said rights by the inhabitants of the territories ceded or relinquished. The treaty provides as follows (Art. IX): Spanish subjects, natives of the Peninsula residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or mlay remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such p)roperty or of its proceeds; and they shall also have the right.to carry on their industry, commerce, an(d professions, l)eing subject in respect thereof to such laws as are alplical)le to other foreignets. In case they remain in the territory they mlay preserve their allegiance to the Crown of Spain by making, before a court of record, within a year fromn the (late of the exchange of ratifications of this treaty, a declaration of their (le(isionl to p1reserve such allegiance; in default of which (leclaration they shall be hleld to have renounced it and(l to have adopte(l the nationality of the territory in which they may reside. The civil rights and i)olitical status of the native inhabitants of the territries hereby ceded to the Ulnited States shall be determinedl )by Congress. Ordinarily, treaties ceding territory contain stipulations intended to protect the civil and political rights of the inhabitants ()or to afford guaranty of present or prospective citizenship under thle new government. But in entering into the treaty of Paris (1,98) Spain did not insist upon such guaranties, and willingly (colnlnitted the inhabitants of the territories cede(l and relin(quished t(o the justice and generosity of the sovereig'n people of the United States. IHence the plrovision: Thle civil rights and political status of the native inhabitants of the territories hereby ceded to the UInited States shall be determined by Congress. The United States recognized the right of sai(l inhabitants to continue in allegiance to the Crown of Spain or to confer their permanent allegiance upon the United States. It therefore became necessary to adopt a test or rule of evidence whereby might be ascertained which 176 course the individual inhabitants had elected to pursue. Hence the provisions of Article IX of the treaty: In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their (ecision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. This provision of the treaty simply declares the ordinary rule that allegiance is presumed from the fact of residence in the country and participation in the protection and other benefits of organized governnent. In regard to this rule Halleck says: The transfer of territory establishes its inhabitants in such a position toward the new sovereignty that they may elect to become, or not to become, its subjects. Their obligations to the former government are canceled, and they may or may not become the subjects of the new government, according to their own choice. If they remain in the territory after this transfer, they are deemed to have elected to become its subjects, andl thus have consented to the transfer of their allegiance to the new sovereignty. If they leave, sine animo revertendi, they are deemed to have elected to continue aliens to the new sovereignty. The status of the inhabitants of the conquered and transferred territory is thus determined by their own acts. This rule is the mIost just, reasonable, and convenient which could be adopted. It is reasonable on the part of the conqueror, who is entitled to know who become his subjects and who prefer to continue aliens; it is very convenient for those who wish to become the subjects of the new state, and is not unjust toward those who determine not to become its subjects. According to this rule, domicile, as understood and defined in public law, determines the question of transfer of allegiance, or rather, is the rule of evidence by which that question is to be decided. (Halleck's Int. Law, vol. 2, sec. 7, p. 475, 3d ed.) "Allegiance," as heretofore used in this report, means the absolute and pcrmanic;t obligation such as the citizen owes to his government until relieved therefrom by his own act or that of the government. But an alien, domiciled in any country, owes a temporary allegiance to the government of that country, continuing during such residence. (Carlisle,. United States, 16 Wall., 147, 154.) Local or actual allegiance is that which is due from an alien while resident in a country in return for the protection afforded by the government. (Kent's Com., vol. 2, p. 42.) The inhabitants of the territories ceded or relinquished )by Spain in the treaty of Paris, sb long as they remain in said territories, are required to yield such temporary allegiance without regard to their citizenship. The foregoing report being submitted to the Acting Secretary of War was by him transmitted to the State Department with the following communication: JUNE 24, 1901. SIR: I have the honor to acknowledge receipt of communication from the Hon. David J. Hill, Acting Secretary of State, dated June 12, 1901, inclosing copy of a dispatch from the United States minister to Spain, forwarding a copy of the royal decree concerning change of citizenship under the treaty of Paris (1898). 17 7 In s:aid letter the Acting Secretary of State says: "Sonie of the articles of this (lecree (10 not appear to lbe in harmnony with the stipulations of the treaty, b)ut the alpparent conflict is probably intended to b~e saved byv the provisions of Article V.'' The dloulbt suggested by the foregoing causetI the inatter to b)e referred to the law officer of the IDivision of Insular Affairs, War Department, for examlination and report. A copy of that officer's report is herewith transmitted. I am inclined to ag~ree wvith the view taken therein. I should b)e pleased to have an expression of your views on the matter, as it will be necessary to advise the mnilitary governments what course they are to pursue with reference to the, matters (dealt with ini said decree. Very respectfully, WV2i. CARmEY SANGER, 4ctb omq ~crefitor o~f Wmr THm SECRETARY OF STATE. The State Department concurred in the views expressed in the report, and1 thereupon the War Department adlvised the grovernment of the Philippines ond the. government of Cubat as follows: JULY 16, 1901. Sin: I have the, honor to transmiet copy of the royal (lecree of Spain, datedI May 11, 1901, which said (lecree (leclares the terms anml conilitions un(ler whiich Spain is willing, to accept a renewal of allegiance to it by (ertain hid~ivi(Iual. inhabitants of the territor'ie~s acquired 1y the 1inited States as a result of the Spanish-American war, antd to reinstate such individuals in Spanish citizeniship. Upon examination this D)epartmnent was of Opinion that. saidi (lere-e did not inifring(e upon the rights of the Viiited States ini the matters dealt wvithi, inor violate the provisions- of the treaty of peace. This view wvas comumunicatedI to the S'tate Department with request for the. opinion of that Departmient. aiid in responise thereto the Acting, S~ecretary of State sayrs: ''The D~epartment thinks there is notlhing ini the Spaniisi (decree to which this (iovernmwinlt c-an properly object.' (State IDepartmnient's,~ letter of July 8, 1901.) I transmit copy~ of correspondence with State. Departmneit anid the, report of the law officer. D ivision of Inisular Affairs, War Departmenit. Very reslpectfullv, WM. (IARY S,._ANGER,.1 ctopq (SeCt1re1j(o-of 1 J'r. lion. WLIM11. TAFT, ( Ud overioor of h J'h/I 14o.Ilod~s. IN RE CLAIM OF THE MANILA RAILWAY COMPANY, LIMITED, FOR PAYMENT BY THE UNITED STATES OF INTEREST ON THE CAPITAL INVESTED IN THE RAILWAY OWNED AND OPERATED BY SAID COMPANY, PURSUANT TO GUARANTY OF SAID INTEREST BY THE SPANISH GOVERNMENT." [Submitted [December 21, 1899. (Case No. 8419, 1)iv.sion o)f Insular Affa:,rs, War D)epartment.] [Printed as Wanr D)epartmeint pmblication by order of the Secretary of War.] SYNO0PSIS. 1. The funds of the Inite(l States subject to the orders of the War D~epartment are not available for the paymnent of claims based upon obligations of the Governinient of Spain, even though it were concedled that the Unite(l States htal ass. —umed saidi oh digations,~ or otherwise 1)ecomne liable thereon.,,See opiniiomn of Attorney-Greneral Griggs, July 26, 1900. 13904-03 ~12 178 2. The executive branch of this Government refuses to consider the funds arising from the revenues derived from the islands, the sovereignty of which(l was ceedd and relinquished by Spain in the late treaty of peace, as being the funds or property of the United States. Said revenues are collected by exercise of belligerent r.;ght for the purpose of defraying the expenses of maintaining peace and order in said islands b}y and through the provisional government instituted therein lprsuant to the requirements of the laws of war. 3. During the negotiations which resulted in the treaty of Paris (I)ecemnber 10, 1898) the Sfpanish Comnlmission proposed that the Government of the United States should "be holden to all the rights and obligations of the Spanish G;overnmlent" created by thle "railroad concession from Manila to D)aupan." Said proposal was rejectedl by the American Comnlission, with the (leclaration "that they would not accept any articles that reqluired the United States to assume the so-called colonial debts of Spain; " Iut, in respect to the Philippines, the Amierican (ommission agreed that their Government should pay to Spain tile suml of $20,000,000. Proceedings of the Commissions reviewed alnd opinion arrived at that said payment was in lieu of an assulmption by the United States of the financial ol)ligations of the Government of Spain created for the benefit of the Philippines. 4. The position taken by the American Commlission was approved by the President and made known to Congress. That lody approved said position by ratifying the treaty based upon said position. It is, therefore, to be supported by the coordinate branches of the Government. It can not be aljudge(l untenable either by this Department or the provisional government temnlIorarily in charge of the civil affairs of the islands. 5. The contract obligations of Spain created by the guaranty of interest on thle capital invested in the enterprise included in the concession now owned by! the Manlila Railway Company did not pass to and become binding uplon the United States by operation of international law upon the cession of sovereignty by Spain and the acceptance of sovereignty over said islands by the United States. 6. Liability for debt arising upon the personal obligation of the (;eneral Government, unsecured by the mortgage of the territory ceded, does not pass with the sovereignty of territory unless stipulated for in the treaty of cession. Such liability is part of tile national debt of tlie nation making the cestsion. The taking over of the whole or any part thereof is anl act of grace by the succeeding sovereign. Its accomplishment relquires an affirmative act on the lpart of such sovereign. The sole dependence of a claimant desiring such grace is that the equities of his cause will appeal to the conscience of the new sovereign. UndIer the listribution of powers madce 1by our Constitution such acts of grace ly the sovereignty of the United States must be performed by Congress. 7. The guaranty of the Spanish Government evidenced by the provisions of the concession to the Manila Railway Company is not a lien upon the island of Luzon. 8. The revenues now being collected by the provisional government of the Philippine Islands are not burdened with a trust in favor of the Manila Rail way Con — pany to secure thle lerformance of the contract obligations of the Government of Spain. Sit: In response to your request I have the honor to submit the following' report in, re claim of the Manila Railway Compalny Limited, for payment by the United States of interest on the capital ilriested in the railway owned and operated by said company, pursuant to guarantee of said interest by the Spanish Government. The facts out of which the claim arises are as follows: The Manila 179 Railway Companyl, Limited, a corporation organized utder the laws of Great Britain, obtained a concession from the Spanish (Governmlent for a railroad from Manila to Iagupan, ill the island of Luzon, a distance of about one hundred and thirty miles. IB! the terlms of the concession the Spanish G(overnmenl t guaranlteed a return of (iolht per centuni per annum upon tl h capital inested in the raiilroad. The claimant represents that the amllloulnt originaally o investe(l was $4,964,400, but that the amount was sublsequently increased, with the concurrence of the Spanish lauthorities, to $)5,-53, 7 (. T e S)palnish Government, up to the time of the Spanisl-Alleri(can war, fultilled its obligations uinder this contract by payintg (lquarterly installnlents of the slubventiolln s they accruted, the amounllt va rying with the earniings of the railway. The Mania Rilalway Company nlow shows that by the late treaty of peace between the United Sttes Sta palill the sovereignlty of the island( of Luzon and the other islands of the iPhilippine Archlielalgo was c'eded by Spain to the United States, and that said sover-eignty was assumed by the United States. (30 Stats. at Large, 1754.) The comlpany contends that by said cession antd assumption the United States becamle }bound to respond to the Olbligations of the Spanish Government under said concession. The companly therefore claims that the United States should pay to it the amotunts due on the subvention which have accrued since tie date of the treaty of peace. These amlountts are as follows: For quarter ending March 31, 1899 -—... —... — ---...... —. —..... ()- $30, 293. 00 For quarter ending June 30, 1899 -.........-.............. --- —-- - 99, 781. 97 For quarter ending Septeitber 30, 1899 -............-...........- 100t. 994. 00 T ota l....................................... --- -----—.. --- —--, 0;( 8. 97 The claim is made1 againlst the United Statets GovernmeLlnt anll presented to tlhe War D)epartment for p.aymentt. As thus preselited( the matter may be sunmariily disposed of by announcing the inconltestable fact that there are no fund(s subject to the orders of tlhe War Department which are available for the payment of claims of this character lagainst the tUnited States. If it were admitted that the claim is just and right atnl the Ullited States b)ound to pay it, if payment is sought out of fun(ds belonging to the United States Governnent, such funds mlust ble provided ad mI ade available by Collgress. None of the funlds of the United States available to this Department can l c devoted to such purpose. Probably the railway company seeks to have this Department order said claim paid out of the moneys accruing from the revenues of the Philippine Islands, collected by the provisional governlment now being maintained there by the United States pursuant to the military occupation of said archipelago. The United States Govern 18(0 inent. refuses to consider the money derived from said revenues as funds of the National Government of the United States, and declines to receive it into its Treasury or allow the Treasury Departnient to assuine liability or responsibility in regard thereto. it follows that a claim asserted tag'ainst the United States as an obligation of the United States can not be paid out of said moneys. if the Unite'd States is tunder obligation to pay the amounts due on this subvention, payment should be made out of national funds of the United States. in order to mnake such payiment out of said funds, it is necessary that Congress shouild lprovide for the payment by an appropriation therefor. The importance of the questions involved and the relation which this I)epartment sustains to the territories lately ceded and relin(luished by Spain to the United States hardly permit of disposing of the mnatter ill such indeterminate manner, and therefore the discussion is extended to the })ases on which the contention of the claimant rests. The guLiaranty under which this claim is made appears in the concession, as followrs: 4. The (ioverniiient wvill aid the construction of the line 1y guaranteeing the interest o)f 8 petr (cut per' a1nnlum upon the capital whieh might b)e invested. (D)oe. 10, 849.) The concession was tinally conferred upon the party fromt whom the Mallnila Railway Con mpanv derived it, by royal decree, from which the following is quoted: Ilis- Majesty The King (to whoim God grant long life), and in his namne, thbe Queen 1Reigent of the ]Kingdloml, has (leigned to approve * * * the concession for the railwav froiii Manilan to 1)agupan of thos,~e islands, with the subsidy- of 8 pet (entuin annuallY, etc. (Doc. 11, 849. it will be seen that this is anll o)ligation of the National Government of Spain and niot of a provincial or mnunicipal government. An autonomous grovernmnent, other than time Crown of Spain, capable of grainitingo this conicessio did not exist in the island of Luzon at the timre the olbligation was created. The undertakino' was that of the swweiw~qvty of Spain, not of a (lep)endCecy. Jd);( t/i t1 V itcdl St(tcNt ((8 I/U rlCe l lw(bdi7ty (f tiw Spanln?/ Oorev~InIt -ertintly did not assumev such liability by tIme terms of the, t-reaty of Piaris. Trhat instrument does not lprovide for nor suggest siuch substitution. it is silent upon that point. But while the trelaty is silent in reg-ard to said mnatter the proceecdingrs of the commissions which forniuhated said treaty are not silent. By reference to the message fromn the President of the United St-atis to the Fifty-fiffth Congress, transmitting the treaty of peace with Spain (Sen. Doe., No. 632, part 1), it will lbe seen that the SpanRish Commission tried to induce the American Commission to consent to the insertion in said treaty of words which would bind the United States for the payment of all, 181 or at least at portion, of the liabilities incurre(d i)b Spain for or on account of the Philippines, Cuba, (anld Porto Ri(o. Manlly notes relating to this sutb)ject and nulller(ouls proposals in regard thereto were suitbmitted by the SIpanish Coinmmission and rejecte(d lby the American C(omllllission. (,S,,i;.. pp. 41. 48, 5, 85, 1oo. [-. 240, 262.) By reference to pages 240, 241 of said publlication, itl appelars tllat 1) protocol 20 the Spanish Commlission prl'pose(l that the ltnited States should 'b)e holden to all the rights land( obli(rgations of tile Spanish Government" by reason of the "railroadl c'oncessionl from Manila to tao:g)l," l( that sai(d )1rlosl was rejected iby the American Commission. The final outcome of the ne(gotitiation a1l the ba),sis of the treaty stipullttion is shown byl the following nlotes passing lbetwV(ee said 'conmis sions oi November 2 2, 1898. (I,., pp. 2 ()-21i):.-A1 )' to 1(]otoco.\No. If,. Co)MMIISSIO(N.o)R TIE 'EI;OTIATIT N (1' PEACE rmWITI TlE VINITED) STAT.\IE.s, P<(is, i Novomit/.o', 1.9S. 1Mr. \\WILLIAM R. )DAY. MIY I)EAs SIR: In order that this comm)ission anl, if necessary, the (;overn(ment of HI. C. M1. may study with a full and exact knowledge tlie prll))ositi)o which closes the Imemorand(ui presente(l at yesterdlav's sessioln b) the (Comnlission yo(u w\,rtlily head, the translation into Spanish of which lias just bleen1 coImpleted, it lbecomes necessary to beg you that with all possible haste you will be pleasel to make clear tlhe meaning of the following points of said proposition, which to me is obscure and vague: First. Is the prolosition you make blased on the,Sanisi c',ololies }eilng trainsferred free of all burdens, all, absolutely all, outstandilig o(lligatilns and dlelbts, of \wliats)oever kind and whatever mnay have b)een tlieir origin aml lurlpoe, reimaining tlhercely chanreal)le exclusively to Slain? * * * I,. MONTE-RO u) I(S..ln e.,'.2 to Protocol No. 1G. I NITED) STATES A NI) SN'PA.\NISI1 PEACE CO(MMISSIO)N, T'NITE') SrTATES CoMM 5 ISSIONERIS, ')(1ris,.\or)/ beI'r 2,, 189,. Sefior DON)tx E,. MAl )TERO Rios. MY I)lE,\l SiR': Having reccived( and( rea(l your letter of to-dlay, touchling thel final l)po)osition prIesentedl b)y tlie Am erican (Commiiissiomners at yester(lav's conference, I hasten to anlswer oiiur inquiries.sritfin, fitrst stating y)our (questioln and then giving my repI)ly. First. Is the proposition you -make based on the,Spanish colonies b)eing transferred free of all burdens, all, alsolutely all, outstanding( obligations anl(l (debts, of whatsoever kinil and whatever mav have been their origin anld purplose, remllaiin(g thereby clargeal)le exclusively to Spain? In reply to this question it is proper to call attention to t.he fact that tlle Atmerican ('(o miissioners, in their paper of yesterday, extsresse(l tli hopl)e that they might receive within a certain tile "a definite a(nd final accel)tance" of their proposal as to tlre Philippines, ain( also "of the dleands as to Cuba, Porto Rico, and other Spanish islands in tlhe West Iindies, anr( (;uam, in the forml in which thlose (lenianls have been provisionally agreed to." 182 The form in whbich thiey have thus been agreed1 to is found in tlhe proposal presented 1w the American Coninissioner.9 on the 17-th of October and annexed to the protocol of the sixth conference, andl is as follows: AirTic('L 1. S',pain hereby rlnusealcahofoveityover and title to Cu ha. AwR. 2. Spain hereby cedes to the U nited States the Island of Porto Rico and other islandls now -undler Spanish sovereignty in the West Indies, anld also the island of (Guaiii in the Ladrones. These articles- contain no proviston for the assumrption of debt lby the United States. Inl this relation I desire to recall t~he statements in which the A~merican comn-inissioners have in our conferences repeatedlly declared that they would not accep~t any articles that requiredl the United States to assumne t-he so-called colonial (lebts of Spain. To these statemnen-ts I have nothing to add. But in respect of the Philippines the American commissioners, while including the cession of the archipelago in the article in which Spain "cedes to the United States the island of iPorto Rico and other islands now under Spanish sovereignty in the West Indies, and also the island of Guamn in the Ladrones," or in an article expressed in similar words, will agree that their Government shall pay ti.o Spain the 'quil of ~$20,000,000. AVIJLLIA-M R. -DAY. The, U.nited States both generally and specifically refused to assume the obligations of this concessionl. A review of the many notes on this suibject which passed between the Spaniishi and American commnissionlers convinices me that the amount of $2OO()OOOO was paid by the United States anid accepted byv Spain in lieu of a transfer of said obligat ion. This application of the M-Naniila Railway Cornpanyv finds no supp)ort or assistance in the treaty of peace with Spain. JDocs in fern ationi at la vcqnlie tliat the [in tedl Ata tec, assu~me the (On 1t?((f obl/!/(d/iO)H of Spa~n e bacdly the qui'ty}1de i the Co)W~NI(PcS ~ to~ th /n6i udayG ay To cll"anser this initerrogatorv it is niecessarv to dieterimine whether or not the db arises oni the personal obligation of the national Goveimiinenit o)f Spaini or that of the loca,,l government of the ceded territory. Liability for debt arising' upomi the lpersonal obligation of the genieral. government does otpasrs with cededI territory unlessiuae for ini the tre~aty of cession. Ordlinarilv a treatv of cession resulting from con)rquest does not contain suhel stil ulation. I lall onl Interniationial LawN\ savys (4th ccl.. p. lu-4, miote): There are one or two instances- in whichi a conmlierillur state~ has takemi over a part,of the general (debt of the state from which it has- seized the territory. Thus in 1866 the dlebt of IDenmnark was divided between that country alSlsg-ostiand in the samles year Italy, by convention with France, took upon itself so much of the IPapal (lcl.)t as was lprolportionate to time revemmues of the Papal p~rovimnces wvhich it had appjrolpriated. It nmav be doubted whether any other like cases have occurred. Th'le reason f or this rule is apparenit. Conquest is onie wNay by which a n(ation enforces payment of a debt. But if the enforcement of the payment subjected the creditor nation to a proportionate share of 183 the debts of the debtor nation, the puirpose of the proceeding would be (lefeated. If sucli weie the rule, an enorinous- national debt would affordl a better protection than tan army andl navy, -and the more hopelesslv bankrupt a nation was, the lesds the likelihood of its beling called upon to perform its internation~al oblig-ations. Such a rule would eventu'ally disrnlpt. the. family of nations. Hall111 on International Law further s~ays (note,, p).9) The fact remains that the general (lelbt of a state is a personal o1)ligatioii. The case also of the creation of a new state out of p~ait of. ai 01(1 one is not dlisting~uislhable, so far as the oliligation to apportion dlebts is concernedl, from that of the session of a province by one state to another. When the latter occurs, at least as the. res-ult of conquest, it is not usuial to take o)ver any part of the general (debt. of the state cedling territory. The Spanish Commission at Paris. 1898., insisted that it was usual and customary to assuinme a proportionate share of such obligations upon the cessionl of territory, and p~roposed the following a~s a tre-at stilpulation (.55-th Cong., 3d sess., Sen. Doe. (62, p. 240): Contracts formnally (ent~eredl into by the S'panish. (4over'11iineit or its authorities for the publdic service of the is-laixds of Cuba and. P~orto Wico, the P~hilippines, and others cededI bv this treatv, andl which contracts are still unlperforixe(I, shiall continue in force unitil their (exliration lpursiiaxt. to) the terms thereof. Such contracts as also cover the service pecuiliar to Spaiix or any of her other, colonies, the new governmxent of thle aIbove-mentionled islanids, shall not b~e caliel iipoin to carry outit save only inlso far as the termiii (4 sai(l contracts relate to thle particular service or treasuiry of such. islands. The new government wvill therefore, as regar(ls thie saidl contracts, be hoblen to all tlhc rights an(I obligations therein attaching- to thec S'panish 0 overniexiixt. Railir )a(1 coixcessi ix firoim x anila to Dagupaix. The Amuericaix Commnission rejected this proposal (1(1.. p). 241). and the Sp~anish (ommuission ile(1a piotest. and in support thereof s~aid with reference to the -action of the Uniteo States (Id.., p. 258,): It refuses also to stipulate an~ thxino in relatioix to thxe respect (Iith coxrcs enterel jixto by a legitiuxate, sovereign fo' pubhlic wvorks andl services-coixtracts which materially affect the rigxts of p~roperty o)f private iixdividuals, which wvere respectelI in the treaties of Caixpo I oi i 00 o(f 1 79 7, o)f Paris4 o-f 181.4, o)f Zurichx of 1859, of Paris 4, 1.86, (f Vieixia of 1864 aixd 1,aixd wlxichx 0 iermxaixv respected also wheix enix~inx the war with Fiance by tlxe treaty- of Frankfort of 187-1. Tie fact that the treaties referred to contaimxe( suich stipulations, shiows~ thlit ol~igrations of the character designxtted (10 ixot paiss with. the territory,. for. if they did, at special stipuilation wvould nxot lbe nmecessarv. Aix applic ation of this doctriine may be found in the diplomatic correspondence b)etween the United States and Englan(d in 18,54, with reference to the auithority exercised by- England over the Mosquito shore. lIx illustr-ation of the arguments of the United States, reference, was made byv Mr. Buchanan to a treaty between Great Britain and Mlexico., and it, was urged generally that ~'-it would be a work of supererogation to attempt to prove at this period of the world's his 184 tory that these provinces havxing, by a successful revolution. become independent states, succeeded within their respective limits to all the territorial rights of Spain." Lord Clarendon replied that the clause in the treaty with Mexico stipulating that British subjects shall not be disturled il the *'enjoymvent and exercise of the rights, privileges, and immllunities" previously enjoyed under a treaty with Spainl. which had been referred to by Mr. Buchanan as proving the adhesion of Great Britain to the doctrine stated by him, proves, on the contrary, that "Mexico was not considered as inheriting the ohllqti.sC) or rights of Spain, as otherwise a special stipulation would not be necessary." (De Martens. Nouv. Rec. Gen. 11, 201-206.) In commenting on this correspondence, Hall on International Law says (4th ed., pp. 101-102): The contention of Lord Clarendon was evidently well foundeld. M. Ir. Buchanan's general statement was accurate, but the very fact that Mlexico succeeded to all the territorial rights of Spain, and conse(quently to full sovereignty within thle territory of the Republic, shows that it coul(l not be hurdened by limitations on sovereignty to whlich Spain had chosen to consent. It possessed all the rights apl)ertaining to an independent state, disencumbered from personal contracts entered into by the state fr(om which it had severed itself. That the obligation which the Manila Railway Company is now seeking to have the United States assume is "a general debt" and "'personal contract' of the Spanish Government is clearly shown by the learned discussion of the matter in the note of the American Commission prepared by Hon. John B. Moore, counsel to the commissioners of the United States, and submitted October 14, 1898. (See said Sen. Doc. No. 62, pp. 48-50.) The position taken by the American Commissioners, ably sustained by their counsel, ratified by Congress and approved by the Executive, is to be supported by the coordinate branches of the Government. (Foster et al. v. Neilson, 2 Pet., 307; Garcia R. Lee, 12 P'et., 516; United States?'. Reynes, 9 HIow., 153; Doe,. Braden, 16 How., 635.) Certainly the position can not be overthrown by the provisional government existing in the Philippines. The Manila Railway Company concedes that the obligation which it is now seeking to enforce against the United States was originally an obligation of the National Government of Spain. The company contends that the obligation was upon the sovereiginty of Spain, attached thereto, and passed therewith. From its application herein the following is quoted (see Letter dated November 27, 1899. signed F. W. Whitridge, Doc. 7, 849): The Spanish tGovernment down to the time of the Spanish-American war fulfilled its obligations under this contract ly paying from time to time the quarterly installments of the subvention as they accrued, the amount of which varied from time to time with the earnings of the railway company. Record of the fact of such payment by the Spanish authorities can undoubtedly be found in the (;overnment offices at 3Manila. I am also informed, although not by the Manila Railway Com 185 pany, that thie fact of this contract and of the olihgations of the S'paniish (Governiient arisilir thereuinder w\Nas lail Ibefore thle Peace Cominissioners- at' Pairis, and, thle obligations of the S'panish ( iovernmeint in resp)ect to time railw\ay-, inatni'ing anmi as yet onidischargred, were ci nsidlere(I by the American Conminissioners in estiimatfint the amomnt of ioniey to he paiul to the Spaniish. CrowNn oii the ratification of the treaty of peace. If this jaf rmnatioin 1 e correct, I thinik that it wonid ten(l to show that this (ioverniment hadl alh'ea~ly expressly recognized the (Comtract iii questioin. Whethicr tine coiitract has, or iio;t bmeen recognizedl, I respectfnfly represenit to you that, with the cessimn of the Philippine IslandIs unnder tile, treaty (if Peace hetweeii the Uinitedl States aiwi SJpaini the sovereigmmty of Spain iii those islaimds, was cedled lv Spain to and was asstimiedl by the United States, and with tliat cessi( lmu f Ihe sov)Nereignity there 1)assel to and there was assnined by tihe United States them mbligations of thle Spaish (Governinent, umnmer this- conitract. The 'Manila Hl~ailwav ( m\ Iany therefore claimiis that the United States shonld pay the amoiint of the ipnarterly installments~ (mie oim the sn-lmvei-itioin which heave accruemi since the late e)f tile treaty of peacc. It is gri-atifyilng to miote that the Spanishi GoVer1m1iment recognizes thle obl)iga~tiomms. of thle character of the one undler consideration, as belonging to the. National Grovernment of Spain and still binding upon it. In ~July, 159t)9, the. Spanish minister of finance submitted to the Cortes a proposed law for the reorganization of the debts of Spaini. In presenting said flaw Sejior Villaverde, Spanish minister of finance., statedl that the Spanish GTovernm11lent declares that it dloes not consider that the (questioni of the debts of the colonies ceded and relinquished byV Spatin were, finally settled bw the negotiations at Paris, nor by the omlinouts silence of the treaty of pettcel on the, matter. He insisted that the Spanishi Government still has the rigrht to insist that where the revenues of a colony wyere mortgaged or pledged for- the, paymettt of a, debt the revenues of the territory constituting- said colony should be applied to the payment of said debts, although said territory had beCen ceded to anothr sovereignity, which refused to take over said obligatiomts and was collectinig revenuies by virtue of its own right to levy -and collect themi. The finance'( Miinister's otlicial statement was p)ublished in the Madrid Gazette alid relpublished by the press of this country. Fronm wheat purports to be ain extract f rom the ofhicial pubhication in the MAadrid Gazette I quote the followimnr: Nevertheless, the statesman who presidled over the Spanish commission has declared in a noteworthy (locumnent, writtemi onl the day after the treaty wNas signed, that though, it is true that the Aimerican Commissidoners did not aImliit the validlity of the mortgage onl time Cuban revenues, and (hil not consent that they shotlml lass to the coloiiies as a responsiblmiIity i ul erent in thle, sovereignty, the Spaniish comm issioners on their side did not assent t~o the contrary conteimtion, and the question remiaimned intact (in Spanishl, iotegro) Thus it iiiist be reslpectedl, with- the liope that lmv new agreements of the same sort as those for time, recognition of the indlepenilence. of other Hispano-Aimericai. neatiomis there will be recognized in the future the unndonlted righit to claini that the revenues of the islaiml of Cuba shiould answer as a mortgacre for the imiterest and amortization of those debts which. thle Spanish nation created legitimately in the exercise of its sovereignty. Nevertheless, the (ioverrnment, does not believe that, reserving, the exercise of this righit, there is any ground in the macanwhiile for repuhiatiimg the Cuban (debts. Thle Cuban debts, like those of time Philip 186 pines, b}ad the general guaranty of the Spanish nation, and the nation can not do otherwise than honor its signature. These debts miust consequently figure in the budget, and they are in the budget which I have the honor of presenting. (See Washington Times, August 9, 1899.) This proceeding of the Spanish Government directs attention to the fact that the Government with which the Manila Railway Coimpany contracted and from which it secured a guaranty is still in existence and recognizes the contract as binding upon it. Evidently the Spanish Government does not think its obligation "passed" with a cession of its sovereignty over a sm1all portion of its territorial domain. The concession provides as follows: 10. The subvention with which the Treasury will aid the concessionaire shall be paid at the end of every quarter. * * The sum which the treasury of the Philippine Islands is to pay quarterly as subvention shall be fixed by deducting from the sum. * * The purpose of this provision appears to be to fix the place where the payments should be made. In 1894 the company applied to the Government of Spain for payment of the subvention at Madrid in money current and in circulation in Spain, or, if paid in Manila, that the company be compensated for the depreciation which money circulating only in the Philippines suffered in the other Spanish possessions. The demand of the company was denied by the general administration of the State and the matter was appealed to the tribunal in contentious administrative matters sittingi in Madrid, which sustained the action of the Government. The full proceedings of the court are not accessible to this Departnient. A copy of the decree is filed herein by the applicant. In said decree the court several times refers to the contract of subvention, and in each instance designates it as a contract with the ' State" or the "'(Geeral administration of the State." Thus, "the subvention granted by the State to the railway." (Doc. 40. p. 1.) ' The contract entered into between the administration alnd the concessiounnaire coiipany." (Id., p. 4.) "The subvention granted by the State." (Id., p. 4.) ' There is no reason whatever compellinlg the State to pay the sub}vention in alny other manner.' (Id., ). 4.) ' We do hereby absolve the general administration of the State fronm the claim interposed." (Idl., p. 5.) lIromi this decree it does not appear that the court or the contestants considered the contract as being that of a local government in the Philippines or of a political subdivision. If such had been the interpretation or understanding of the company at that time, it is difficult to see upon what ground it rested the claim that the su)bvention should be paid in Madrid and in a different currency than was in circulation in the Philippines. The gist of the decision of the court is that the State received the money circulating in the Philippines in payment of taxes and other obligations to the State, and therefore the liabilities of the State were to be discharged with the same money. (Doe. 40.) 187 IIot orabl(, Whitelaw Reid, a memlber of the Americtan Coimmission which nmegotiate(l the late treaty of peace with Spain. discusses the iquestion now under consideration in an article entitled. "Some consequences of the late treaty of Paris; advances in international law alnd changes in national policy," published in The Anglo-Saxon Review, June, 189! 0). One topic thereiln treated lb this emiinent tpblicist is, "When debt does not follow sovereignty." Speaking' of what are known as the "Cuban b)onds" isste(d lb) the Spanish Government to about,$30)0,(000(,000, to the payment of which Spain pledged the revenues received 1)b herl from the island of Cuba and her own guarantee, Mr. Reid says: But the fact was that these were the bonds of the Spanishl nation, issued by the Spanish nation for its own purposes, guaranteed in terms.' "'by the faith of the Spainish nationl," andl witl another guarantee pledging Spanlish sovereignty an(l control over certain colonial revenues. Spain failed to maintain her title to the security she had pledged, but the lenders knew the instalility of that security when they risked their moneyN on it. * * * The Spanish contention that it was in their power as ab)solute sovereign of the struggling island to fasten ineradicably upon it for their own hostile purposes unlimited claims to its future revenues would lead to extraordinarv result,. Under tlhat doctrine any hard-pushed oppressor would have a certain means of subduing the most righteous revolt anl condemning a1 colony to perpetual subjugaation. lIe would only have to load it with bonds, issued for his own lrlse l lnl)oeey, eon( any possible capacity it could ever have for p)ayment. Un(ler that load it could neithler sustain itself independently, even if successful in war, nor pltrsua(de anll other 1power to accelpt responsibility for and control over it. It would 1),. rendere impol)tent either for freedom) or for any change of sovereignty. To ask tie nation sprung froll the successful rev olt of the thirteen l c(loies to acknowledge and( act on *an ilmmolral doctrine like that was indecd ingenuous-or audlacious. The A!mierican Comlissioncrs prono(unced it alike repugnant to commllon sense and menacinug to liiertv and civilization. The Spanishl commissioners resented tthe (characterization, but it is lbelieved that the consierate judgmlent of the world will vet ii)pprove it. In regard to what is known as tlle "Plhililppine delbt Mr. Reid says: Warned 1)b tlite results of inqluiry as to the (rigin of the Cullan (del)t, the Ame11rican (Colnmissionlers avoitle(l u(lertaking to assume tills o,, bd,,. But in tleir first statement of the claim for cessio.n of so(vereignty! in tlle Plhililppines tey w(ere careful to say that. tlhey were readyl to stipulate "'for tlie assulmpltion ()f ayl existing ilnlebtedness o(f Spain incurredl for public works andl imp})rovements of a pacific (claracter in the Philippines." Not till they learnedl tlat of this entire ''Phililppine (leelt" (only issued in 1(5'7) over one-fourtl had actuall] been transferred( to( Cu(la to carry on the war a(ainst thle Cu)ba insurgents, an(d finally against tle I'nite(l States, and tliat the most of tlie b)alance had probably bleen use(l in prosecutiing thle war in Luzon, did the Am-\erican (om iissio)ners abl)andon the i(ea of assuming it. E'ven t/hen thlei resoltedl, io, the./ itl transfcr/, to fi.' (ll amount (it leatst eqal to thle d(c e (tle of t/ltt debt,?/hich coidd be gieil to,Spi cts aln ct('lnowlcled(/tmelt foir ato)( lp(acfic improretements she maight erer /hare mode there n!ot paidl foi by tite reenules of th1e i-slands th/elselhres. Shie cottld use it to pal/ the 1tilip)pite bonds if shte chlose. That l'(ts the Americ(n rieo. (as to thle tsanctity of )public debt legitim(ote1. icutrred(1 ill beehalf o(f ceded territor!/; (ald thatt is n( e.planration of the *mono)1 p,(tymenlt inl the case of the Philipplines, aos (well (s of the precise (amo(nt (t waChich it wcas finat(11y fixed. 188 Attention has beenI called to the fact that the independent goovernInents erected ill the Spanish South Amnlericanl colonies assullled( certalin olbligations of the Govelnnmenllt of Spain existing ill tlhe territories iat the tinle of seTaration. WAithlout exanlining thlte character of the lial)ilities so asstnll ed, it is suf-ficiellt to consider that said lialilities were (t.4s.s tOl/ 'and st1l(l Itssunlptio)n accolllplished iby the affilmll'tive act of tle new State. Ill nearly all of said instances the, asstmll)tio(ll of said oiligations wa:s made prior to the acknowledglllent of the ill(llependence of the colony )by Spain. HIistorically we know that the tassmtillption of said ol)ligations was a price paid,by said colollies for indepenldell(ce an(Id recognition of sovereignty. [he United Stttes w't not so e nctlmbered inr the legotiations at 1;Laris in 1S!8s. lMost writers on illterlnational law refer in gleneral ter'lms to the propositionl that when territory is ce(le(l by one sovereinllty to anlother the sovereignty sectiring the territory sSecures all tlie Irights and privileg'es and assumies all the o})ligatios of thle previotts sovereignty as to the territory ceded. This doctrine is inaccurlate, by reason of attemptilg to extend the rights and obligations of one sov-ereign to those of another who may be unable to receive or exercise sulch rights or discharge the oblligations because of the character of his government. The rule is well established that " every nationl acquiring territory,,by trealty o1r otherwise, must hold it subject to the constitution and laws of its own. gov ernment and not taccording to those of thle government ceding it." Pollard's Lessee r. Hagan, 3 How. (U'. S.), 212; Vat. Iaws of Natiolns, 1b. 1, c. 19, s. 210, 244, 25(), and 1). 2, c.,, s. S.). It is impossible for the (Government of the United States. undier thes Constitution and republlican forll of otur g'over nment, to possess or exercise many of the rights aid privileges-of the asoveveign. of a ilonarchy. As is said,by the United States Stupremdie Coulrt (:3 How.. 225): It can not l)e a(tllittel tlhat the King of Spain could, l)y treaty o,r otlhri-ise, implart to the lUnited States any of his royal prerogatives; all(l lmuci less (an it be admlitted tllhat they hlave c()aepait to receive or power to exercise thlenl. rThe samlle thing is true of the i' obligationls" of the previouis sovereign. If the governmelnt is a mlIonarchy, the sovereign is obliged to maintain that form of government. Butt suchl1 obligation woulld not pass to a reptublic. A sovereignl is tun(tle ol)ligations to enforce the laws of his state, }ult as is aptly state(d by the Attorney-(C;eneral, John WV. Gl'iggs — Those laws which 'are political in thleir nature andl lpertaii to the 1,rerogatives of the former government immediately cease uponl tile transfer of sovereignty. Pol'tieal and( prerogative rights are not transferred to thle suclceedtinr ation. (Letter to, Secretary of War, July 10, 1899. 22 Op.,,528.) Take the instance of an established church or at government where church and state are combined. The highest obligation resting upon 189 the sovereign of such government is to protect, maintain, and promote tile church as a State institution. His proudest title is "Defender of the Faith," and to deserve it such a sovereign usually stops at no end(eavor. But such obligation would not pass to the United States with ceded territory, and did not attach to the United States with Alaska, Porto Rico, or the Philippines. The United States Supreme Court say: As a m-atter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power, an( the latter is involved in the former, to the United States, the laws of the country in support of an estal)lishe(l religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of ollirat,!:-, force without a.y declaration to that effect. (Chi. and Pac. Rwy. Co. r. McGliln, 114 1T. 8., 542-546.) The rights and privileges which pass from one sovereignty to another upon the transfer of territory are the rights and privileges of sovereignty as they are established by the laws and institutions of the government receiving the territory. The obligations incurred in like manner are the obligations devolving upon the sovereign,by reasol of the laws and institutions of the govelrnmient to whicl the new sovereignty apperttains. In other words, the sovereignty receiving the territory assumes the obligations of sovereignty as to the territory ceded, as such obligations are established in the government to which the territory pamsses. The term sovereignty as here used mceans " the right which a lnation has (,f lorganizing the public povwers il such a way as it lmay deeii advi-sable." This right inlcludes the powerv to incur contract oblligations. blt it is lnt coImposed of such obligations. One is the power or authoritv: the other is the result of 1an exercise of the power. It is the power, the authority, that passes with ceded territory from one sovereignty to another. land it is the obligations or dluties which a sovereinltv owes to its subjects regarding the use of such power which passes, not the debts which the prior sovereignty has contracted for its own 1purposes ib the exercise of that power. If tlie sovereignty hlas lawfully pledged any portion of the territory ceded for the paymllent of a debt or the performance of a contract, and the benefited party has a property interest or vested right therein, such i'ight is to be protected by the new sovereignty. But no such claim is made herein by the railway company. I)Debts which are not secure(d by lawful liens upon the territory ceded, even though contracted for the benefit of said territory, do not b)ecome a, debt of the new sovereignty. As between the two sovereigns, the one receiving the territory is under no obligation to the sovereign ceding the territory to pay any portion of his grantor's debts unless the obligation is voluntarily assumed and stipulated in the 190 treaty. In other words, no lec/al obligation exists requiring the discharge of the grantor's debts by the grantee in the absence of treaty stipulations so to do. The obligation under such conditions arises in equity, if at all, and is based upon the established rule of national conduct, that tlhe sovereign will not do injustice to an individual, and therefore will hear and consider the claims of the creditors. Therefore it is said that such debts are a charge upon the conscience of the sovereiain. The force and effect of claims of this character depend upon the facts of each particular case. One fact to be considered is whether the sovereignty which created the obligation still remains in existence. If it does, and the obligation is a national one. the creditor has no claim upon the conscience of the new sovereignty. Upon this question Hall on International Law says (4 ed., part 2, chap. 1, sec. 27): No question therefore presents itself with respect to the general rights and duties of a new State. What, however, is its relation to the contract obligations of the State fromll which it has been separated? * * * The fact of personality of a State is the key to the answer. With rights which have been acquired and olbligations which have been contracted by the old State as personal rights and obligations the new State has nothing to ldo. The old State is not extinct; it is still there to fulfill its contract duties and to enjoy its contract rights. The new State, on the other hand, is an entirely fresh being. It neither is nor does it represent the first person with whom others have contracted; they may have no reason for giving' it the advantages which have been accorded to the person with whom the contract was made, and it would be unjust to saddle it with liabilities which it would not have * accepted on its own account. Thus treaties of alliance, of yotaraottee, or of commerce are not binding upon a new State formed by separation; and it is not liable for the general delbt of the parent State. In a note to this text the author says: The case also of the creation of a new State out of part of an old one is not distinguishable, so far as the obligation to apportion debts is concerned, from that of the cession of a province by one State to another. When t)he latter occurs, at least as the result of conquest, it is not usual to take over any part of the general debt of the State ceding territory. (Id., note 1, p. 99.) The instance of Texas furnishes a precedent for guidance in this matter. Although the annexation of Texas included all its territory and terminated its sovereignty as an independent nation, the United States has never conceded that the debts of Texas existing at thl time of annexation became a liability of this Government. The iUnited States recognized the fact that said debts should be paid, and for that purpose permitted Texas to set aside 10,000,4)00 acres of public lands devoted to said payment. Afterwards, the United States took plortions of said lands pledged to the payment of Texas debts, agreeingo to pay therefor $10,0(00,00, three-quarters of which sum was to he paid to holders of Texas bonds, for which her customs dutties were pledged. The claim that the United States was liable for the debts of Texas 191 came before the mixed coimmission, under the convention with England of 1853. The commission found that it did not have jtllis(lictioIl to determine the questionl, but an examination of the pr1oceedings is of value. 'rhe c(lainl was made on a bond secured by a pledge o(f the faith and revelue of Texas. It was admitted that the liability of the U'nited States did not arise from the annexation of the territolry. }ut, flonm the fact that the United States wats receiving the reventles of Texas, which had been pledged to the payment of the bonds. (I)Dec. of Coin. Convention, 1853, pp. 405-52~0.) The position of the United States was that the rev-enues l)ledgced were the revenues of the Tci,.rs nation. That said re\enlues al)I)''rtain to the yow,r rnmef and not to the t(eri torly. That when Texas ceas.led to be a nation there ceased to be Texas revenues. That what the United States was collectingl was United States revenue tand a very different thing fronm revenues exacted by the rlexas governlnllt 01' nation. That the difference is as,substantial tas the (lifference lbet.ween the nioney or currenlc issued by the two nations. If the United States was not willing to admit liab-ilitv as to tihe deblts of Texas, where a pledge existed, will it be willing to admnit liablility in the instance of the Philippines where a pledge does not exist! Did thei yewofl2ty of the A/)U/Slt Gove9rg'muent lwcono' a lien, vupon tia' r'eele, 'C of the Yist(ld!f Lut-on? An examination of the concession orI charter shows that no attempt is made therein to pledge either the public prop)erty or revenues of Luzon for the performance of said obligation of gubaranty. It is probably true that while Luzon was a Spanish dependency Spain utilized the revenues of the island in comply-ing with the contract of guaranty, and for this pluipose included the sumIl necessary to l)e laidl in the annutal }ludget of the state for the IPhilippines. The burden imposed upon the P'hilippines by the SpaLnish buldget included not only general obligations but also suIms for the various departnments knownl ias justice, war, treasury, navy, interior, and fojlw)icfn). It would be unavailing if a soldier ill the Spanish ariny, who had lser-ved in Luzonl( and whose pay was in arrears, should apply for p)aym!ent to the Government now possessed of the revenue funds of the islanld anld base his application oil the fact that he had served in Luzon during the time for which he clainmed pay, and that as the annual budget for the island had included an itell for the war department for -yeiars he had a lien on the revenues of the island for his pay. Yet the supposedl contention of the soldier would have as much merit as the contention of the company herein. But if the Spanish Government had pledged the future revenules of the island to the performance as the contract of guaranty, such pledge would not be a, lien upon the fund which this Government is now collecting. 'While the negotiations of the treaty of Paris were in progres>s. the Spanish commission, having failed to induce the [liited StaLtes to 192 assume the obligations of Spain in regard to the debts incurred for or on account of the territory ceded or relinquished, insisted that said debts should follow the territory and be paid from the revenues thereof. Attention was directed to the fact that Spain had issued 2,99!'0,00 hypothecary bonds of the island of Cuba, and that the royal decrees on which said bonds were issued contain the following avowal: The new bonds shall have the direct (especial) guarantee of the customs revenue, stamp revenue of the island of Cuba, direct and indirect taxes now levied or to be levied there in the future, and the subsidiary (general) guarantee of the Spanish nation. The bonds themselves contain the following declaration: I)irect (especial) guarantee of the customs revenue, stamp revenue of the island of Cuba, direct or indirect taxes levied or to ble levied hereafter, and the subsidiary (general) guarantee of the Spanish nation. The Spanish Colonial Bank shall receive, in the island of Cuba, through its agents there, or in Barcelona, through the Spanish Bank of Havana, the receipts of the custonm-houses of Cuba, and such amount thereof as mlay be necessary, according to the statements furnished on the back of the bonds, to meet the q(uarterly p)av nent of interest and principal, shall be retained daily and in advance. The Spanish commission contended that said bonds evidenced a niortgage debt secured 1by the future revenues of Cub)a. (Sen. Doc., 3d sess., Fifty-fifth Cong., No. 62, pt. 1, p. 178.) III rejecting this proposition the American Co immission say: As to that part of the Spanish Inemiorandum in which tile so-called Cuban bonds are treated a "'lnortgage bonds" and the rights of the holders as " nmortgage rights," it is necessary to say only that the legal (ifference between the pledge of revenues yet to be lerived froml taxation and a mortgage of property can not b}e confused by calling the two things by the samue name. * * * No more in the opinion of the Spanish G(overnment, therefore, than in point of law, can it I)e Inaintainedl that that Governlment's promise to devote to the payment of a certain part of the national debt revenues vet to be raised by taxation in Cuba, constituted in any legal sense a mortgage. The so-called pledge of those revenues constitute(, in fact and in law, a pledge of the g(.o( faith and ability of Spain to pay to a certain class of her creditors a certain part of her future revenues. Tley obtained no other security beyond the guarantee,f tlhe " Spanish nation," which was in reality thle only thing that gave substance or value to the pledge, or to which they could resort for its performance. (Id., pp. 200, 201. ) If the contention of the XAmerican Commission is correct as to obligations wherein it is expressly declared that the revenues of Cuba are pledged to the performance of the contract, a like c ontetio llst prevail where the contract is silent as to a pledge of revenues. The position taken by the American Commission in this natter was made known to the Executive and )b hilm onllunicated to Congress. Congress ratified the treaty and the Executive appro-ved such action. Therelby the position of the Commission was acquiesced in by the legislative and executive branches of the Governm(ent of the United States. It is not to be contemplated that the position will b>e adjudged untenable Iy the l)rovisional government temporarily in charge of the civil affairs of the island. 19J3 'The provisional grovernuient of the Philippines is bound to holdl that said guaranty'A of the Spanis.-h Goveriiin1ent, is not, a lieul 111)01 the revenues of the islands. A ' ce)~eSof tb,Ph I// dpjfln& Tind. W/ bclq'l ('ollc(t/J(i hi/ ti })'/U;8o)oUil /lo'?.oi-,nmo-t. h?'Penc(l '/d/ tiwist /0~ far-ol ofP tie' 9/a/la If the phr'aseology of this question is clmngedl so asto read, " IHas the railway company aI proprietary interest or vested1 righlt inl said revenues? "it wNill lappear at once that the answver iiiist be inl the negative. The claimi wNhich the comipanv asserts is of inchoate right, even when uirgedt against the Spanish Government, and relates to the p~erson~al obligation of that Government, lbeing- a naked promise without security. As to such inchoate rights the Supreme- Court of the U nited States.say (Dent s. Emnieger, 14 Wall., 312): But inchoate rights, such as those of Cerre, wvere of imperfect ob~ligationl and affected only the conscience of the new sovereign. They were not of suich. a nature (until that sovereign gave themn a vitalitv and effhcacv which they d(Ii n~ot before possess) that at court of law or equity could1 recogniz oil en1force themi. When c-onfinnied 1w Congress they became Amnericaii titles Imid took their legal vali(lity wholly from the act of confirmuationi and not from an- F rench or Spaniish element which enteredl into their lpreviouls existemmee. 'this doctrine has a dlirect aplplicationl to the matter tinder consideration. As the case now stands the company has the obligation of thle National Government of Spain. Up to this tune the represent-atives of the United Sta~tes autthorized to bind it have, refused to lassume said oblig(at ion. The most thle r-ailway coimpaiiy canl as-sert' is that said obligation of the, Spanish (Governmnent has niowN become a charge upon the consceience of the sovereign people of thle United States. If it wvere conceded that sai(d obligration had become a chiarge upon the eo-Ol sciencee of thle sovereign1 people of thle United States. tihe manner inl which and extent to Which the duty so created is to lbe discharged must, lie determnined by Congriess. Thie views set forth inl the foregoing- report were approved by the SecrettLirv of War andl the subsequent,action of the War Department onl this claimi and others of similar character was inl harmony therewith. 13(94-03 -13 194 IN RE PETITION OF THE COUNTESS OF BUENA VISTA FOR RELIEF FROM A CERTAIN ORDER OF THE MILITARY GOVERNOR OF CUBA; AND THE CLAIM OF DR. DON GUSTAVO GALLET DUPLESSIS FOR SIMILAR RELIEF AND INDEMNITY. [Submitted August 8, 1900. Case No. 1136, Division of Insular Affairs, War Department.] SYNOPSIS. 1. The authority heretofore possessed by Spanish officials to exercise the powers appertaining to offices created )by the Crown of Spain for the purpose of administering the affairs of government in Cuba under Spanish sovereignty ceased upon the military occupation of the islandl by tle forces of the United States being established. 2. The tenure of office of the Spanish officials heretofore exercising authority in Cuba is not property and therefore is not entitled to the protection to rights of property guaranteed by Article VIII of the treaty of peace. 3. Although the Crown of Spain was accustomed to sell a perpetual incumbency of certain of its offices, among them that of high sheriff of HIabana, such right of incumbency was at all times subject to the higher right of the sovereign to reassume the exercise of the authority of the office whenever the public welfare required it. 4. The claim for indemnity for being deprived of said incumbency depends upon the terms of the contract with Spain; and as this contract was the personal contract of the Spanish State, its obligations did not pass w ith the transfer of sovereignty, and they were not assumed by the United States. 5. Whether or not the olligations of the Government of Spain incurred in Cuba are to l)e assumed by the government established by the people of Cuba is a question to be determined by that government when it assumes the exercise of independent sovereignty. 6. Whether or not the municipality of Habana became liable for the paymlent of indemnitv in said matter by reason of proceedings had prior to the militarv occupation is a question which may properly be referred to the courts of Cuba. SIR: I have the honor to acknowledge the receipt of instruction to report on the above-entitled matters, and in response thereto I have the further honor to submit the following: The facts out of which the controversy arises, as claimed by the complainants, are as follows: In the year 1728 Don Sebastian Calvo de la Puerta bought at public auction, from the Spanish Crown, the office of "Alguacil mayor," or high sheriff, of the city of Habana. The office was declared to be perpetual and capable of passing by inheritance in the direct male line of descent and of being alienated by purchase and sale under certain conditions. Upon the death of the purchaser aforesaid, the office and its emoluments passed by descent to his grandson, Don Francisco Calvo de la Puerta, whose title received royal confirmation by letters patent, dated May 22, 1783. Eventually, the male issue of the incumbent of the office having become extinct, the office passed, by the permission of the Spanish 195 Crown, to the Count O'Reilly, who was tile llusl:alnd of the dllghter of the then recently d(eceased high sheiitff. Frolm the Count O'Reillv the offisc desclnded to lis heirs and( successors, with the approval in each case of the S)paiiish C(rown.. to tile present Countess O'Reilly y Buena Vista, on whose behalf this procceding- is instituted. The (luties of the high sheriff of -Habanta were originally divisible into two general classes-nationall ald ltlmunicil)al. In the performlance of the duties classified as ' national " the high sheriff of Iaballlna resembled the United States mllarshal of a Territory of the 'nited States. Hie was an executive officer of the courts, and writs of all classes were served by himl or his deputies. For su(ch s(ervices lie was entitled to fees fixed bv law. His municipal duties resulted from the fact that he was, ex officio, a member of the " xauntamliento" or city council of Habana andit(l calllrged with tlhe duty of inspecting the meat supplied to the city and (given supervision of the slaughterhouse where the cattle were required to be killed, and had clharge of the transportation of the carcasses from the slaughterhouse to the dealers, also the disposal of tlle refuse, and was required to inspect the weights. For the performance of these ditties he was authorized to exact a fee of 5 ' reales fuertes " for each head of large cattle killed ill the slaughterhouse of Ilabanal and cartage for hauling the meat. Later the fee for the cattle killed at the slaughterhouse varied in accordance with the tilmes, but was fixed )by law. Tlh last rate fixed was 621 cents per head. The complainants allege that their privileges connected with the slaughter of cattle were worth to theim "in the neighborhood of $100, net, per day " at the time they were deprivedl thereof. At this point in the review it is proper to explain the interest asserted by Dr. Don Gustavo Gallet Duplessis. By appropriate provisiors the Spanish law permitted the seizure and sale by judicial procedure, to enforce the payment of private indebtedness, of a one-half interest in the emoluments of the privileges appertaining to the slaughterhouse industry possessed by the high sheriff of Habana. Pursuant to said law, Dr. Don Gustavo Gallet Duplessis purchased, at judicial sale, a one-half interest in said emoluments on September 19, 1895, and entered upon the enjoyment thereof. Upon the American occupation of Habana being established, the military authorities of the United States refused to allow the Countess of Buena Vista and Dr. Don Gustavo Gallett Duplessis to exercise the authority or enjoy the emoluments appertaining to the office of high sheriff of Habana. 196 trhereupon the, interested parties had recourse to G'eneral Ludlow, as milhtary governoir of the city of llabania, for recognition of their atsserted rights, and reinstatement therein. This being denied, theyapIpealed to -Major-General Brooke, then military governor of Cuba, for the relief desired. Mtajor —General Brooke refused to recognI)ize their clalim or to order reinstatemlent, and thereuponi appeal is mafde to the, Secretary of War. The relief demnandedl by the Countess of Butena Vista, ats set forth in the praver of her petition, is as followvs: Your lpetitioner lbeing thus. dleprived * humbly prays, the premise-s beimig considered, that. the aforesaid orders lbe revokedl your jIe.titionter be reinstated in all his property, right~s, and~ privileges, of which said ordlers dleprived1 him, and that tlie mnilitary, govern(.r of H-albana lbe (lir-cetedi to account to and lay over to your petitioner all the mi-oneys of which lie has been (deprivedl as atforesaidl fronm the (late of suclh dleprivation until lie shall lbe actually repossessedl of his property and( privileges', or drmly ii(iemninihe(l therefore, andI that hie have such other,and further relief as may s~eem pirol~er. ( Doe. 5, p). 6; printed b rief.) (NOTE.-In this poroceediing the Countess, of Buena Vista is represented by her husband, 'J. Y. (amnara. Hence, the use of the pronoun ''lie,.'') Tedeimand made by D~r. Don Gustavo Gallet 1)uplessis, as stated t)v his counsel, is — 1.The repocal or nuillification o.f the ordlers of the niilitarv governor of 1-abana of May 20, 1899o, andI of the military "overnor of Cuba oif August 10, 1899, to which this coiii111iunicatioii refers, an(l the restoration of all things in connection w\ith the heredita~rv righits (o —f the 01'Reilly fumuil o)f IHabana, and the office, oif hicfi sh leriff of that clity, to the status- quo (existmirg omi the 11tli of April, 1899, whlen flirotuh the pro(!aniatioii of thie treaty otf pea ' witli Sp~ain, the abandonment by lpain (of all clams f oveei~iiv ver aid title to Cuba becamie an accompldishe d fac(t, adil the C(iii-ii people becaiie free and ind( p(mdemit. 2. T~he pavyient by the (ov erniin mt of the U nited States of all mionev,, of which Dr. Dcon;istavo-4~ ( 1iallet 1 )uplessis has been deprived, at the rate of sixtv-twoo dollars andl a half per (lay, froii the 1-t o)f June~, 189, iii which the o)roer of thie military! govenor,10 of Hlabania of May 20, 1899, went, iiito effect, unitil the (lay of the repudhiat~ioii and repeal- of that ordler anid o)f the ordler of thme military governor of Cuba oof Amugut 10, 1 899. (Sepp. 21, _22, priintedi brief (of 1)r..1. 1. Rod)riguez, counsel for Doctor lDuplessis. The eoinplainimmits contend (1) that sai(d oflice is property; (22) that said prLoper-tv beloniged to theim onl April 11. 1899, when the ratifications of the treat\' wereC mu1tually exchianged; (3) that slince that date they have beenI (lclprivedl of sai,(1i property. by, the taction of the military governmenit of Clubla; (4) that such deprivaN1tion contr-avenles thle pr-ovisions of airticle 8 of the treaty of peace with Spain, anid international The l Iearnied and disting~uished COnnMsel who reprecsent, thle complainianspresenit elaborate, ar1LImnntS, which a i'e entitled to car-efulf examimation ahid'serious consideration, not onily because of the arguments themselves, lbut of the high professional -standing of'the authors_-. There are, also on file herein a number of reports or opinions onl ques 197 tions involved in this c:ontroversy submnitted bX Spanish, (Cluban, and American lawLel's, in opposition to the claimls of the complainlnts. In common withi those on icehalf of the complapinants, these argullents show a wealth of knowledge and extend(le( research. The attention and consideration of the Secretary is tlhius spec iallyv directed to the arguinent of the comjllainiants, instead of submitting a synopsis thereof, as being better calculated to protect their interests, as I feel compelled to report that their aIrgullnenlt rests on premises assumed to be correct, }but which appear to Inte as beilg illnpossible of demonstration. They are. ais follows: 1. That complainants were p(ssessesed of the rLights now assertedl and entitled to exercise themi on April t11, 189l9. 2. That said office itself was and is property, aind now ~belonlgs to coniplainants. If, from the laws of war and 1nations, or'the pillpose for which the military invasioli of Cu})ba was undertaken I)b\ the nTlited States. it results that the autholrity of colnll)lai nants to adillinister sli office ceased upon the establishment of lllilitarY' O(,culpation of Hlabana, or the office itself became fuvwctu.s oithci;o, it follows th:at the 'atlrogation of rights now complained of wats accolllplished by)\ the success of the invxasion and not the actiol of the mllilit:L-ry voverlnlllent, which action Illttst }be held to be simlply (leclar atorv of an existing c(ondition and not a.s c(,reiting said condition. While it is lenied lherein that the tentire of otlice of tile Spanish officials heretofore exerc('isin?,':tauthority in (Cul:ba is i)property, the proposition is ad(lanee(l that if it were ' property" it was lrol)(erty which, being in tlhe tlrack of watr, was destlroyed thelrebly, and, b)einll destroyed, is not within the I)lotection of article S of the{ trelat!y. If relief is to )bet affordedC( the comlplainants under the treaty, such relief arises from article 7 aLnd not article 8. With this greneral statement of the pIurview of this report, exatiiinationi is made of the several questions enllbraced therein. Were the complainants possessed of the rights now asserted, and entitled to exercise thein, wlhen the ratifications of the treaty were exchanged on April 11, 1899? It appears herein that the Spanish (Governnent had adopted a p)olicy for the abolishment of this andl similar offices. IBut the Spanish G(overnment recognized the right of the incumbents to secure indemnnity for the d(eprivation of the incumbency and its emoluments. As to the office of high sheriff of Habana, proceedings were pending to:scertain the amount of such indemnnity at the time the Aimerican inlvasion of Cuba occurred, and pending the ascertainment and playient of the indemnity the incumbents were perm itted to enjoy the emoluments. Therefore the question will be considered as though the office were one of the fixed and firm governmental institutions of Spanish sovereigntv in Cuba. 198 Tlhe compllainants insist that they were deprived of their office by the action of G(eneral Ludlow, mnilitary governor of Itablana, in issuing the order dated May 20, 1899, and the action of Major-General Brooke ill sustaining said order. It seemns plain, to the writer, that the complainants have overlooked the real instrulnent of their undoing. Their in(lividual or personal rilht to exercise the authority pertaining to the office of high slheriff of 1IaltLana and to enjoy the emoluments of said office was placed in jeopardy )by the war l)etween Spain and the United States and abrogate(d when the city of Halban1a became subject to military occupation by the forces of the United States. rhe general rule dleducible from the laws of war is that the authority of the local, civil, tndl(t judicial administr:ation is suspenled, tas of cour se, so soon as military occup)ation takes place, although in actual practice it is not usual for the invader to take entire administration into his own hands; but the omission is an act of grace on the part of the invader. Iliebler's Instructionls for the (Government of Armies of the tUnited States in the Field, section 1, paragraph 6, lays down the rule as follows: All ci\il anid )enal 1tri' shall continue to take its usual course in tile enreiies' places anl territories under mlartial law (military governllelent), ulless interrul)tc(l or stopped l)y order of the occupvying military l)ower; but all tlhe.fnctions o qJ the hostile govern mlt —legislhtire, execu.c(tive, or atdi-)listr(ltiue-tlhetlher of ot general, )provincial, or loc(tl c(tharacter, ce'(se 1lder' 11Ca'tial ltaw (mnilitary governiment), or contilnue on/ly with the satnctionl or, if d(ee)ce(l.ecessc,'('!, the patrticipation of the occ)pier or invader. 1 unlderstalnd this instruction to mean that it requires an affirmllative act of the invader to ablrogate the civil or penal law,/s, but the authority of legislation, execution, and administration of all laws passes to the military occupant 1as a result of the occupation and without further affirninative act or declaration. Should he thereafter desire to confer the right to exercise any or all of said powers upon the persons previously exercising them, oir other persons, an affirmative act is necessary. If this is the correct view, it follows that upon the military occupation of Habana by the forces of the United States being established, the authority theretofore Iossessed by these claimants }by virtue of said office passed, 4pso facto, to the military occupier ald will remain there so long as the occupation continues, to be exercised or not, as the occupier shall determine. I take this to be the rule even when it is conceded that the office does not becomefetctus ofticio as a result of military occupation. I see no reason why an exception should be made to this general rule in the instance under consideration. The fact that the term of office was perpetual does not give exemption, for the principle is the same as is involved where the term is for life, a series of years, during 199 good behavior, or at the royal pleasure. If thle former incumbents of this office lmay rightfully dem ald restitutiOln andi indemlnitv. why may not any other Spanish officer demand similar treatment at the hanlds of the military government? The nlext question is, Did the establishment of military occullation in ltabatna render the office knowNn as high sheriff of Habana fiwcwtis offic /;. If tle highl sheriff of Habana was an officer of the Crown of Spain, similar in character to that of the Spanish Governor-General of Cuba or the Spanish governor of the province of Itabana, it would seem unnecessary to produce argument to show that, upon the military occupation of IHabana being established, the office and appurtenant rights, privileges, and Iauthority passed away with the sovereignty upon which the office depended and of which it was an instrument, agent, or vassal. If the officers of the previous sovereignty remain in office and continue to exercise the powers derived from the previous sovereignty, wherein has the previous sovereignty been displaced? The invasion of Cubta bv the military forces of the United States was undertaken alnd the military occupation of Habanal estal)lished for the purpose of complelling the Spanish Government to comply with the demand of the United StatesThat the Government of Spaill at once relinquish its authority and government in the island of Cuba. * * * (Joint resolution of Congress, April 20, 1898. See 30 U. S. Stats., 1. 738.) To what end and purpose were the military operations in Cuba: if, at the end of a successful invasion, the instruments of the Government of Spain possess a: vested right to continuance in place and power Even if not justified by the laws of ordinary war, the military government established hb the United States in Cuba is fully justified in considering as ended all authority of all agencies of the Government of Spain in Cuba, for that is what the military forces of the United States were ordered to do by the sovereignty they serve. (See joint resolution of Congress, 30 U. S. Stats., 738, 739.) The purpose of the invasion being to render all branches of the Government of Spain in Cuba fieuctus oficio, the success of said invasion must of necessity be held to accomplish said purpose. Do the laws of nations and of war prohibit the abrogation of said office and its appurtenant rights and privileges? The harsh rule still prevails that "the will of the conqueror is the law of the conquered." The application of this rule in modern usage has robbed it of its terrors. But it is the rigor of the application, not the rule, which ha. been mollified. The belligerent seeing fit to enforce the rule, has the right to do so. The United States in maintaining military occupation in Cuba and the resulting military government 200 has applied this rule in its mildest form. Such municipal laws (being the laws regulating the relations sustained by the inhabitants to each other) as were compatible with the existing conditions have been retained, as were also, temporarily, such instrunents for their administration as the military authorities deemed expedient. The political laws (being the laws regulating the relations theretofore sustained by the inhabitants to the prior sovereign) were held to be abrogated, as was also the authority of those who previously administered said laws. In a-letter to the Secretary of War, dated July 10, 1899, the AttorneyGeneral says: By well-settled public law, upon the cession of territory by one nation to another, either following a conquest or otherwise, * * * those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon the transfer of sovereignty. By parity of reasoning it would seem to follow that officials whose authority was derived from said laws and whose duties consisted in administering said laws would cease to possess their former powers when said laws passed away. The ground on which they stood is cut from beneath them. The question thus raised herein is, Was the office of high sheriff of Habana political in character, and did it pertain to the prerogatives of the Spanish Crown? In a general sense all administrative offices are political. This fact is the basis of the section above quoted from Iieber's Instructions. An examination of the origin and tenure of the office under consideration and the powers exercised in the administration thereof will, it is believed, show that said office was especially and peculiarly political. The office was created and the right to administer its functions disposed of by an exercise of one of the prerogatives of the Spanish Crown. In Law 1, Title 20, Book 8 of the Recopilaci6n de Indias, which contains the Real Cedulas from 1522 to 1645, it is stated: As one of the greatest an(l best known prerogatives of our royal preeminence and dloinion is the creation and provision of public offices, so necessary for the good administration of justice, an(l without which the Republic can not live, and so important for the government of our States and the dispatch of the many and varied matters which arise, and sai(l offices being of two kin(ls, some with jurisdiction and others with some participation therein, which do not have it directly, and as the general and public necessities require the sale of the second( kind for the enrichment of our royal treasury, those of the first class being reservel; and because at the time of the Catholic kings, our predecessors, some offices were created which were given and granted as a grace to worthy subjects of our Royal Crown and could afterwards be sold or disposed of as they became vacant, and could be renounced, it is our will, and we order, that the following offices shall be salable and renounceable, this order to be observed in the same manner as our previous general and special decisions: Algvuaciles Wtncaores of audiencias, escribanos de camwllra of the audiencia, etc., "there being included in the statement all kinds of escribanos, the algtuacilesmayores, and regidores of cities, procuradore.s and tasador and repartidor of causes." 201 The office being created was conferred upon the individual who purchased the authority to administer it, but the Crown always retained the title and power to control the disposition thereof. The purchaser received 1a beneficial interest, which was at all times subject to many limitations and might lapse olr become forfeit in many ways, in which event his interest reverted to the Crown. In the royal c(dula of October 15, 1 77, it is stated: Taking into consideration that, although the incumbents of offices which can be sold and renounced have the indirect ownerslhip, with the limitations prescribed by law, they are not authorized to dispose of the same at will as any estate of their patrimony, because imy Crown always preserves the direct ownership (domninio directo), with a possible right of reversion thereto for (lifferent causes which mav arise, * * * I have decidled to forbid, as a general rule, any imnl:osition of annuities or other charges on salable ndl renounceable offices of iy IKinrg(olms of the Indies. * * * And finally I dleclare that there can not b1e attached mlore than onethird of the emoluments and fees of said offices for the (lebts of tleir incuml)ents. (NoTEr. —" )ominio dlirecto: Authority or privilege of disposal which a person retains in a thing or estate which lhe has given in eilllhyteusis." —l)ictionarv of the Spanish Aca(lermy.) As has already been stated, the high sheriff of Ilabana was authorized to serve court writs. In so doing he acted as the representative of the Crown. Since the sovereignty, whose representative lie was in such matters, no longer exercises judicial authority in Cuba, the powers of the high sheriff relating thereto have (been cut off at their source. The same is true of the powers exercised in connection with the slaughterhouse industry. They are powers included in what is known as the police power of the State. As to Cuba under Spanish dominion, the "State" was the Crown of Spain, or Imperial (Governmlent of the Spanish Peninsula. Tlhe undefinable, indeterminate authority called "the police power of the State" is one of the highest and most despotic powers of sovereignty. So important and unlimited is this power that sovereignty can not divest itself thereof. Strictly speaking, it can not delegate it. The sovereign may, however, designate officials who may exercise it for him, but in such exercise said officials act for and on behalf of the sovereign and by virtue of the power vested in the sovereign. They do not share in the right or prerogative. They are the instruments by which the prerogative is exercised. If by any means the sovereign is divested of the prerogative, the instrument is thereby rendered ineffective. The Crown of Spain may no longer exercise prerogative rights in Cuba, and its instrument, the high sheriff of Habana, has no greater rights than are possessed by his principal. If the foregoing views are correct, it follows that the office of high sheriff of Habana was political in character and becamnefunctu. officio upon the establishment of military occupation in Habana. If said office were to be reestablished, it must be or becomeie an instrument or agency of the sovereignty now being exercised by the 202 military government. It can only become such instrument by an act of grace on the part of the military occupier conducting said Government. The complainants herein do not ask for an act of grace. Their demand is one of riy/ht. To comply with such demand involves the admission by the military government of Cuba that the sovereignty of the island is still lodged in the Crown of Spain and the instruments of Spanish Government are now entitled to exercise authority in Cuba. The military government existing in Cuba depends for its justification upon the proposition that the sovereignty of the island is vested in the people of Cuba. This proposition was declared by the Congress of the United States, speaking for the sovereignty of this nation; it was sustained by the force of American arms and confirmed by the treaty of Paris. Pursuant thereto, the military government in Cuba has reorganized the municipal government of Habana, and based it upon the sovereignty possessed by the people, and installed municipal officials whose title to office is derived from that sovereigntv and conferred by an exercise of the right of franchise expressed by popular vote. To comply with the demand now made by complainants and to permit the high sheriff of Habana, or the incumbent of said office, to again assume a seat in the city council and exercise the powers and authority of a member thereof, would be to recognize a dual sovereignty in Cuba, two sovereignties in one jurisdiction. Theoretically, at least, the city council of IIabana would then consist of members elected by the people and other members whose title to office originated with and was derived from the Crown of Spain, by virtue of a sovereignty vested therein. Such member would represent the Crown of Spain anld act by virtue of the sovereign powers thereof. Since the Crown of Spain had declared the office perpetual and to pass by inheritance and sale, such office could not be dispensed with except by ransom, and the right of the inhabitants to govern themselves could be bartered and sold by an individual. It seems hardly possible that the United States will require the people of Cuba, domiciled in Habana or elsewhere, to ransom the right of selfgovernment from Spanish officeholders after voluntarily undertaking to wrest that right from Spanish sovereignty by force of arms. The same incongruity will be noticed in connection with that portion of the demand relating to the courts of Cuba and the claim of authority to serve court writs. The courts of Cuba as now constituted do not represent Spanish sovereignty. They represent the sovereignty exercised by the military government. Whether that sovereignty is the sovereignty of the United States or the sovereignty vested in the people of Cuba is not involved herein. It is sufficient that it is not the sovereignty from 203 which thle highl sheriff of -Iallana derived hlis authority, nor the sovereignty whose p)rerogatives said offi'er w\as authorized to exercise. It is true that for till, )rolably illn many instances ('Olltilluing to the Ipresent, the offices created and the officers installed in Cula by- the Crowvn of Spain were permitted to continue their functiolls ~by the militarv governlllent. Bout in so doilg thel military governmeint consulted its own convenience and necessity. Such act wats tlan act of grace and did not result f roim any right possessed by the Spanish officer. It is apparent from the record herein that the mlilitalry government of Cuba has refused such act of grace in; the instance of the high sheriff of Hal mana. Are the rights asserted by the claimants rights of property and protected by the provisions of the treaty of peace The claimants strenuously insist that 'the rights asserted b}y them and possessed by them while Spanish sovereignty prevailed in Cuba are property rights, and as stuch are protected by! the treaty of Paris (1898). In so doing, it seems to the writer, the complainants fail to observe the dlistinction between the )'lcutle7ec!?/ and the q!ffic itself. Trhey confuse the fees with the authority to perform the servi(ces for which the fees are exacted. Aln offiCer has a property ricght in and to the fees arising froll services performed pursuant to his right of incumbency, but not to the office itself. That a public office is the prol)erty of llim to whom tile execution of its duties is intrusted is repugnant to the institutions of our country, an(l is at issue with that universal understandting of the comulllunitv w'hich is the result of those institutions. Publlic officers are, ill this country, bltt the ageiits of the body pI)litic, constituted to discharge services for the benefit of the p)eople uIll(er laws which the people have prescribed. So far fromn h(olding a proprietary interest in their offices they are but naked agents without an interest. As public agents they are intrusted with the exercise of a portion of the sovereignty of the people-the jts ptJblicmo-, hich is not the subject of grant, and( can be neither alienated nor annihilated, alnd it would lhe a repugnant absurdity, as incolllprehensible as it would be revolting, that they c(an have a private property in that sovereignty. (State v. Dews, R. TM. Chart. ((;a.), 397,400). Careful examination convinces me that this principle may properly be applied to the office of high sheriff of ltabana, under Spanish sovereignty. As stated in the royal order of October 15, 1787, the title and power of disposal of said office was retained by the Crown. The pulrchasel received only the right of administration. The right of administration consisted of an agreement on the part of the Crown of Spainl that complainants should be and continue the instrument of the Crown for the exercise of certain prerogatives in Cuba. While the office was declared to be perpetual, the biwlclu, enlcy/ was subject to the royal will, and might at any time be terminated at the royal pleasure, subject only to the condition that if the Crown exercised said right 204 the incumbent should be indemnified for the loss of his incumbency. Such termination of incumbency was not an exercise of the right of eminent domain. It was an exercise of the right of sovereignty to choose the instruments for the discharge of public duties devolving upon it. Sovereignty can not evade these duties, and therefore can not divest itself of the powers nor the right to exercise the powers required for their performance. For instance, an individual can not secure a vested or property right to control the operation of martial law; neither can he secure a vested right to exercise the police power of the State; nor the judicial discretion. (Butchers' Union?'. Crescent City, etc., Co., 11 U. S., 746t, 751.) i do not think the Spanish G(overnnent contemplated or undertook to convey a property right in and to said office when it sold the privilege of aldministering it. There is an1 evident and essential difference between power and property; between the authority of an officer and the property of an individual. A- grant of property passes from the grantor his entire power over it. A grant of power implies that it still resides in the grantor, and excludes all interference with his right to exercise it. I think the true theory is that the rights of the complainants were inchoate rights of contract, not vested rights of property. The original incumbent of the office secured a contract froml the Crown of Spain, paying therefor a valuable consideration, whereby the Crown of Spain agreed to perniit hinl, his heirs, and his assigns, to administer said office within (a prescribed jurisdiction. As a result of action taken )by another and independent sovereignty, which Spain resisted to the extent of war, the Crown of Spain was thereafter unable to carry out the obligations of said contract binding upon it. This contract, in all its parts, was subject to the superior right of the public to terminate it at any time the public necessity required such action. The purchaser entered into the contract with implied knowledge of this superior right, and any loss or burden occasioned hint by its enforcement 'results from the application of those principles by which the public good is to be consulted and promoted," and is dan,(m, ab8 utse injura. (Spring v. Russell, 7 Greenl., 273; Charles River Bridge v. Warren Bridge, 7 Pick., 459, 472; Lansing v. Smith, 4 Wend., 9; Callender v'. Marsh, I Pick., 410; Coates,?. Mayor of New York, 7 Cow., 585; People v. Livingstone, 6 Wend., 526.) This right of the public being part and parcel of the contract, its enforcement does not constitute a violation of the contract. The administration of this office consisted in exercising certain prerogatives of sovereignty. The contract herein did not attempt to divest the sovereignty of said prerogatives and vest them in the incumbent of said office. H-ad such attempt been mnade it would not have been b-inding upon the sovereignty agreeing thereto. At any time the 205 public welfare requirt t it, the sovereignty could have repossessed itself of the right to exercise such prerogatives. (Boyd r. Alabama, 94 U. S., (45; The Beer Comnpan-. Massachusetts, 97 1,. S.. 25, 28; Fertilizing Company r. Hyde Park, 97 U. S., 659; Stone i'. Mississippi, 101 U. S., 814; Butchers Unioin r. Crescent City. etc.. Co., 111l.., 746;.) In Stone,'. Mississippi (101 V. S.. 814) the court say (1). 817): All agree that the legislature (anl not bargain away the police power of a State. And further say (p. 819): No legislature call bargain away the public health or the public morals. The people themselves can not (o it, nmch less their servants. The supervision of botll these sul)jects of governmlental power is continuing in its nature, aiil they are to be (lealt with as the special exigencies of the mioiient mia\ rc(quire. (overnlment is organized with a view to their preservation a(nd can not divest itself of the power to pro)vide for them. For this purpose the largest legislative discretion is allow\ed, and the discretion can not be parted with any mlore than the power itself. That this rule prevailed in Spain is shown by the royal order of Novemlber 11, 1816, which declares the right of the crown to repossess itself of these purchased offices, notwithstanding the clause in the certificate of appointment, or patent of office. guaranteeing immunlity from such exercise of authority. The royal order of November 1.3, 1817, declares: ARTICLE 1. All tile offices beloningf to the Crow,). which have beell disposed of are revertible to the Crown, and may le relprcllasel, although they have bCeeln so(ld w\ith the p)roviso that tlley were to be Iperpetual all(n that they might not be relurchased, and notwithstanding any1 provision that may seem to Iprohibit it. In these two royal orders no reference is made to indemnity. The only provision to the advantage of the incumbell nt is one giving him a preference in the repurchase. The word "repurchase," as used in said orders, is shown }by the context to nmean a repurchase by individuals, not a repurchase by the Crown, as a condition precedent to repossession. The purpose of the orders is to resell the offices, and the orders i)rovide that the sums realized from said repurchases shall be turned over to the department of )public credit and devoted to reestablishing said credit. The royal order of January 21, 1819, declares: ARTI('LE 1. All the offices of my Crown, which have beenl disposed of for a price, may beh incorporated even though they have been sold with the clause of perpetuity or of any other that prohibits it. It was the practice of the Spanish Crown to assert its right of ownership over these offices, from time to time, by divesting thein of certain powers and functions, and finally the Cortes decreed and the Crown approved that the Government should abolish said offices, "thus releasing the people from this burden." (Law of July 14, 1842.) At all times, when a transfer of said offices was to be accomplished, 20 6 either by purchase or inheritance, it was necessary to secure the assent of the Crown thereto. These powers are incompatible with the idea of a property right in the inculmbent. Much less is such contract binding upon a new sovereignty established in the territorial jurisdiction by operation of war. Let us suppose that the office involved was the judge of a court, instead of the marshal. Would it seem possible that a sovereignty established by conquest was bound to submit its sovereign judicial powers to the discretion of a person who had purchased the right to exercise such discretion from the expelled sovereign? Or to recognize a right to sell and dispose of said judicial powers based on a contract or any obligation created by said prior sovereign If authority for a negative answer is required, it mnay be found in Bank of Columbia v. Oakley, 4 Wheat., 244-245; Hawkins r. Barney, 5 Pet., 466-46.7; Fletcher v. Peck, 6 Cranch., 143. Sovereignty of ceded territory is not burdened with the personal contracts entered into by the State froin which the territory is severed. (Hall on International Law, 4th ed., sec. 27. )" But suppose we concede that the conplainants did have such an interest in this office as constituted property. It must then be considered that it was property situated in the track of war, and being destroyed by vwar the owner must endure the consequences. lie is not entitled to indemnity from the invader nor the military occupier. If the true theory is that the rights of the complainants terminated when the military occupation was established, it follows that since the military occupation of Habana occurred on January 1, 1899, the complainants were not possessed thereof when the treaty became effective as to private rights, upon the mutual exchange of ratifications April 11, 1899. So far as it affects individual rights a treaty is not concluded until exchange of ratifications. (United States 'e. Arredonda, 6 Pet., i91; United States v. Sibbald, 10 Pet., 313.) Therefore the rights of the complainants are not protected by the provisions of article 8 of the treaty, for they had passed away before the treaty became effective as to them. The complainants stand in the same situation as the owners of property injured or destroyed in the bombardment of Santiago or the invasion of Porto Rico. Article 8 of the treaty was not intended as a guaranty of indemnity. It provided for protection of existing rights, not the restoration of destroyed ones. As to property and rights destroyed by the war, provision was made for compensation as set forth in article 7 of the treaty, as follows: ARTICLE VII. The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its a See ante, page 178 et seq. 207 citizenls (1 stlbjects, against tile ot(her (i;,veriiient, that lay have arisell since the beginnillig of the late illsurrection in Cul:a aill I)rior to:) the exchanrge of ratifications of the I)lesent treaty, incllti(ing all claims for indelinity for the ((cost of the war. The Uniited States w-ill adjudicate and settle tile claimiis,f its citizens against Sl)ain relinq-uished in this article. It is to article 7 and not to article S the c1nhllllaiilalts lllmust look for relief. There remains for consideration the Lill n of indebtedness. As already stated, an owner is iiot entitle(l to compensation for danmages or loss to property taken or destroyed durting war. The basis of the claill of indebtedness herein is thalt the rights and privileges of the comlplainants were abrogated by the Spanlish t Governinent h,,j,,oe t/,e qwart; that said atbrogatioll created all indebtedness in favor of these complainants. and against the Spanish Governmerent, and that the oblligation to pay said debt lassed to the succee(ling sovereignty in Cuba. When a sovereign displaces one of the instrumlents for the exercise of prerogatives the tquestionl of indemlnity is to lbe determlined b}y the discretion of the sovereign. It addresses itself to the conscience of the sovereign. The right is grounded in equity until acknowledged or declared existing by the sovereign. The opposition to the policy of disposing of the incumnbency of offices by sale, and the agitation giainst it in Spain ad(l the Spanish colonies are of long duration. Naturally the incuimbents desired to preserve their privileges or to receive indennritv. As already noted, the royal orders of 1812 and 1813 did not provide fol such indemn-ity. This would excite the eninitv of the incunibents and decrease the amouiit to be realized )by tile (Governlent froln the new sales. The royal order of June 12, 1822, recognized the right of indemnity, and on May 10, 1837, the Cortes passed the following resolution: The following persons are recognlized as cred(itors of the State, viz, all owners of public offices which have been (lisposed of b)y the Crowni far a consideration and which have been abolished (as bebing incompatible rih the (sontitntimon and the louw. If Spanish sovereignty had continued to exercise doniinion in Cuba, the situation would be as follows: The office of high sheriff of HabanaL would h}e "'abolished as being incompatible with the Constitution and the law," but the complainants would be permitted to enjoy the emnoluments until they were paid an amount due them as "creditors of the State." This was a debt, a personal obligation of the Government of Spain, arising on action taken by said Government in abolishing said office, originating in equity and acknowledged by the Cortes with the approval of the Crown. This presents the following question: Did the obligation to pay this personal indebtedness of the Spanish Government pass to the United 208 States upon assuming sovereignty in Cuba in trust for the inhabitants of the island The answer to this question is found in the fact that in the negotiations at Paris in 189)8 the United States refused to assume the financial obligations binding upon Spanish sovereignty in Cuba. Were the fact otherwise and the liability of the United States admitted, payment could not be made by this Department. There are no funds of the United States at the disposal of the War Department for the payment of claims of this character against the United States. The Congress must furnish relief in such cases. The complainant; would be obliged to look to Congress lor relief if the treaty specifically required the United States to pay such indemnity or if the obligation unquestionably passed to the United States by operation of international law. The position taken by the United States in regard to the transfer of liabiiity for indebtedness of the Spanish Government incurred in Cuba is, that questions relating thereto are to be referred to and determil( d by the future permanent government of the island when that goveinment assumes the exercise of independent sovereignty. The high sheriff of Habana was a *double office;" i. e., it was national and municipal. The law for the reorganization of the municip:il councils of Cuba (July 27, 1859) contained the following: A wric(,E 98. Aunicipalities having pIurchasable and assignable offices yieldin:emoluments or fees of any kind whatever shall at once proceed to) collect all the information necessary to enalle the proper authorities to fix, according to the rul s lmade and provid(ed for the aippraisement of double offices, theirsale at public auction, and tlhe payment to the royal treasury of the taxes which may l)e due, what amount shall have to b1e paid 1by each; alnd they shall recommende the manner and form of raising the funds -whichl Imay be necessary for that purpose, with the understanding that the aforesaid fees and enmolulments shall tlen become Imunicipal property, subject to thle provisions mnae for their preservation or increase. The complainant, i)r. I)on Gustavo Gallet Duplessis, insists that by reason of the foregoing and other provisions of the Spanish law, and the proceedings heretofore had in the matter of abolishing said office and fixing the tlamount of indemnity, the city of ITabana is indebted to him in tlhe amount of one-half of the value of the emolumlents of the municipal office, (,' (!ffic;o appertaining to the high sheriff of Habana. If I understand this claim, it is based upon the theory that, while Spanish sovereignty prevaile(l il Cuba, the indebtedness then existing against the Spanish State was duly and lawfully transferred to and became binding upon the municipality of Habana; that by reason thereof the city of Habana was indebted to him at the time the military occupation took place, which indebtedness he now seeks to collect. The attention of the Secretary is directed to the fact that the municipality of Habana is a municipal corporation which may be sued in 209 the courts of Cuba, provided the inhibition contained in order of the military government dated Habana, March 21 1S99, is removed. It would seem better to test the mnerits of this claim of indebtedness in a court of competent jurisdiction instead of having it passed upon by the military authorities. The Secretary of War determined this application, pursuant to the foregoing report, as follows: In the matter of the tpplication of the couztess of Buena Vista for revocation of certain orders of the military gorernor of Cutba. I can not assent to the proposition that the right to perform any part of the duties, or receive any part of the compensation attached to the office of sheriff of Habana under Spanish sovereignty, constituted a perpetual franchise which could survive that sovereignty. The fact that the Spanisn Crow-i permitted an office to be inherited or purchased does not make it any less an office the continuance of which is dependent upon the sovereignty which created it. The services which the petitioner claims the right to render and exact compensation for are in substance an exercise of the police power of the state. The right to exercise that power under Spanish appointment or authority necessarily terminated when Spanish sovereignty in Cuba ended. It thereupon became the duty of the military governor to make a new provision utnder Nwhich this part of the power of the new sovereignty, which took the place of the sovereignty of Spain, should be exercised and the necessary service rendered to the public. The petitioner has been deprived of no property whatever. The office, riglit, or privilege which she had acquired by inheritance was in its nature terminable with the termination of the sovereignty on which it depended. The question whether by reason of anything done before that time the right to compensation from the municipality of Habana has arisen is a question to be determined byN the courts of Cuba. Tlhe application for the revocation of the order heretofore made herein by the military governor of Cuba is denied. ELIHU ROOT, Secretary of WTar. DECEMBER 24, 1900. in the matter of the application of Dr. Don Gustaro Gallet Duplessis foi rerocation of certain orders of the m)ilitary gorernor of Cuba. This application is covered by the decision upon the petition of the Countess O'Reilly and Buena Vista for the revocation of the same orders, and the application must be denied. ELIHU ROOT, Secretary of War. DECEMBER 24, 1900. 1394-03 14 210 THE RIGHT OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, INSTITUTED BY THE PRESIDENT OF THE UNITED STATES, TO REGULATE COMMERCIAL INTERCOURSE WITH THE ARCHIPELAGO; AND, AS AN INCIDENT TO SUCH REGULATION, TO IMPOSE IMPORT AND EXPORT DUTIES. [Submitted November 18, 1901. Case No. 1244, Division of Insular Affairs, War Department. Printed as War Department publication by order of the Secretary of War.] SYNOPSIS. 1. The right of the Government of the Philippine Islands, instituted by the President of the United States, to regulate comilnercial intercourse with that archipelago, is justified as an exercise of the war powers of the nation in territory affected by an insurrection. 2. The right to exercise the war powers of the nation does not turn upon the question as to whether or not the territory is foreign, but whether or not the territory is hostile. 3. The President is authorized to determine the question as to whether or not existing conditions render territory lostile, and his determination thereof is binding upon tile courts. 4. The customs duties levied on imports and exports at the ports of said archipeiago are to be consitlered and justified as(a) Conditions imposed upon the privilege of trading with hostile territory. (Hamilton v. Dillin, 21 Wall., 73.) (b) Regulations of trade with hostile territory. (Ibid.) (c) Military contributions in territory wherein the United States is conducting military operations against an armed insurrection. (() Revenue measures adopted by the Government of territory subject to military occupation. 5. The war powers of a nation are not subject to the limitations and control of its domestic laws and Constitution. 6. The discretion of the President in the exercise in hostile territory of the war powers of the United States for the enforcement of measures intended to suppress an armed insurrection against the authority of the United States, is not subject to the control of the judicial branch of this Government. 7. The legislative branch of the Government of the United States may participate in the exercise of said war powers. 8. By the legislation known as the "Spooner amendment" Congress confirmed the authority of the Philippine government to adopt and enforce appropriate measures for the administration of the affairs of civil government in territory subject to its jurisdiction. 9. The "Insular cases" (182 U. S.) determine that in legislating for Porto Rico under the conditions of peace Congress is not bound by the limitations imposed by the Constitution on legislation for the States of the Union. A like liberty respecting insular matters is possessed by the governing authority in the Philippines which Congress has recognized as possessing legislative authority. 211 10. The Constitution (Art. I, sec. 10, par. 2) permits export taxes to be levied by the concurrent action of a State and Congress. In the Philippines tile national authority of the United States may exercise all the powers of both Federal and State Governlments. 11. Under the distribution of powers among the several branches of tlle Government of tle United States, the authority to fix an(d determine tlhe relations sustained to the Federal Government, by territory and inhabitants not included in tile original thirteen States, is vested in tlhe political branch until such territory is ma(le a State of the Union. The late treaty with Spain recognized and declared this authority to be so vested. WAR DEPARTMENT, OFFICE OF THE SECRETARY, DIVISION OF INSULAR AFFAIRS, Washgton, 7). (. I, 3 (J em} 1('8, 1901. SIR: I have the honor to acknowledge tile receipt of your request to prepare and submit a report on the qifestion of the right of the Government of the Philippine Islands, instituted by tlle President of the United States, to regulate commercial intercourse with that archipelago, and, as an incident to such regulation, to impose import and export duties. In compliance with your request, I have the honor to submllit the following: I. THE AUTHORITY OF THIE UNITEI) STATES TO EXERCISE 1BELLIGEIRENT RIGHTS IN DEALING( WITH TIHE INSURRECTION IN TIlE 1PIIILIPPINE: ARCHIPELAGO. The customs duties exacted by the governnment of the Philippines are enforced by an exercise of belligerent right. The authority for such exercise arises from tle conditions existing in the islanlds. There prevails in said archipelago an insurrection against the sovereignty of the United States and authority of the existing government, of such magnitude and extent as to require set military operations by tlhe military forces of the United States for its suppression. While enlgaged in suppressing such insurrection, the governmell t mlay properly exercise the rights of a belligerent. It is true tlat Congress lihs not formally declared war against the forces of the insurrection in the Philippines. A war originating in insurrection against lawful authority is never formally declared. An insurrection becomes a war by reason of its attendant circumstances, the number, power, and operations of the persons who originate it or engage therein. (The Prize Cases, 2 Black., 635.) War is a condition, not an act of the legislature. In sustaining the right of the Federal authorities to blockade the ports of the late rebellious States, the Supreme Court of the United States say: War has been well defined to be "that state in which a nation prosecutes its rights by force." The parties belligerent in a public war are independent nations. But it 212 is not necessary to constitute war that both parties shoul(l be acknowledged as indep)tndent nations or sovereign states. A war may exist where one of the belligerents claims sovereign rights as against the other. (The Prize Cases, 2 Black., 666.) A sovereignty engaged in suppressing an insurrection against its authority mIy exercise the rights of a belligerent and deal with the insurrectionists as entitled to the protection of the laws of war without authorizing neutrals to deal with them as an independent power. In order that this discussion may not be unduly extended, this point is not elaborated, but is treated as closed )by the quotation from the Instructions for the (overnment of Armies of the United States in the Field, as follows (sec. 10): 1. Insurrection is the rising of people in arms against their government or a portion of it, or against one or Imore of its laws, or against an officer or officers of the government. It Imay be confined to mere armed resistance, or it imay have greater ends in view. 2. Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, aind each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those containing the seat of government. 3. The term rebellion is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and'portions of provinces of the same who seek to tlrow off their allegiance to it and set up a government of their own. 4. When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them as an independenlt or sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their Own acknowledgiment of the revolted people as an independent power. 5. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they mlay have in the samle; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowle(lgment of the rebellious people or of the government which they may have erected as a public or sovereign power. Nor does the adoption of the rules of war toward rebels itnply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties. 6. Treating in the field the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty. (See also Hickman v. Jones, 9 Wall., 197, 200; Williams r. Bruffy, 96 U. S., 176, 191.) For the purposes of this investigation it is unnecessary to ascertain the date of the inception of the conspiracy which culminated in the insurrection. The date of the first overt act of the war is not so unimportant. The first hostile engagement between the insurgents and the 121 3 forces of the Uniited States (consisted of an as,-sault bv the insurgrents, on an outpost located neal' the town of Santol, a suburbl of M1anlila. The official report of this attfack, mwide by Lieuitenant, Whedlon, the. officer ini coinniand at saidl outpost, is, a~s follows (Report of -MajorGrenerafl Comnunanding- Arniw. lS~99, par-t '2, J). 464): WATRWOKS I )E PSIT0, 1"lrIMIo1f -10, 18990. AF)ta N ',irst. Xcbrc((-,,b (eite~lYd No/es Thin niee To~fitt n/e. SIR: 1. 1have the honor to make the(' follow-ing report o)f what occurred at. Nebraska outpost No. 2 onl the, evening of February 4, 1899: Onl Saturdayv evening, Felbruary 4, 1 899, at 7 o)'clock, I took charge of outpost No. 2, as orderedl. Fromi this outpost, al out 100 var(ls dlown the roadI which passes it7 is the town of Santol. Here we hial a Cossiock po)st. of eight mien stationed at the junction of three roads,, on)le lealling, fron i outpost ~No. 2, ano ther lea(lingC to 1 lockhouse ~N-o. 7, the, thiird to lblockhouse -No(. 0. At 7.30 1 instructed all the Inen of this post in their orders, a copY)N of which is hereto attachedl. Thiey were to allowv no armned insurgents to enter the town o)r the vicinity. They' were to hlt] all armed persons who atteilnpte(l to advance from the diirectio.ii of time linsuilrgents' hules, wlich lav between blockhious-es 6) and 7 and the S,~an Tuan bridgre, an(l or~ler theum back to their lines. Tf they refused to go, to arrest themi if possible, or if this w\\as inil)ossible, to fire 111o01 themni. I also ordere(l then to patrol each of the roads leading to Ibloekhouses, 0' and 7 for 100 vardls every half hour. Shortly befo4re 5 oj'cloc)k a Jpatrol of three, mcil a(lv-ancedl froin Santol towardl blockhouse 7. Akfter proceeding about 100 varIls the-%' halted at the sidle of the roa.( and waitedl t~o see if there were any insurgents inl the vicinlity. Private Willian irasn Conipany 1), was a short (listance, in advance of the other twvo. After waiting, about five minuttes, Private (iraVsonl Saw four armed men suddlenlV appear' five yards in adlvance of bin, Ilie inmmuediatelv called "Halt!'' as did also Private Miller, Comipany ID, who was in rear of hin- amld saw the mnen at thle same timte. At this conunuandl the fouri men c( eked their lpieces, whereupon Private ( rayson called "Halt!'' agrain, and firedi at. them. Our three mnen then ret~reatedi to tihe town of 'Santol, 'where I inet them, being at the town wh-len the shot was fired. Imiinmedliatelv after the shot. was fired we could hear the imnsuigents comraing dlown the ro,-ad from bllockhouise 7. I sent a manl lack to the outjpost to signal fihe Nebraska camp that the insurgents were comiing fromt the blockhouse. I reminainedl with the man iil Sanitol and in about three minutes from the time our manl firled the-, shot severa~l armed mnen emerged from the trees in our front across the road andl the houses onl our right and fired toward us where- we were kneeling in the opposite sidle of the, road. We returned their fire with a volley and then fellI back along the road to the pipe line whichi lies near outpost No. 20, the enemy keeping uip a ralpid fire along the roall for aibout five minutes. We fired 110 more after leaving~ ~Santol until later in the. evening,.1 About tenl miinutes after the skirmish at Santol. the insurgent~s op~enedl up a general fire on the Nebraska canip an(1 outposts, andl also (on Colorado's o~utpost oin our left. Onl the morning o f February 4 the insurgents ordered our memi to miove out (If town (Santol), and upon their refusal to do so the former saill that. they wcould bring a body,, (If men and dhrive them back when night came. 'Very respectfully, your obedlient servant, BURT 1). WREDOIN, Second Lieutenant Copaqeny C, First4 Nebrask-a Unirted AStates TVolItrteI'I' Infaintry. On February 6, 1899, two days after this engagement occurred, and with futll knowledge thereof, the Senate advised the President to ratify the treatv. On the, saine day (February 6) another engagement between 214 the insurgents Land the troops of the United States occurred. The official report on that engagement is as follows: FIRST NEBRASKA UNITED) STATES VOLUNTEERI INFANTRY, OFFICE OF THE COMM)ANDING OFFICEIR, JVaterwor^.s, J)e.ii, Depoi, Fbruary 7, 1899. A1)J 1 TANT-G-;ENERAIL, S'coo(td Briga(dc, Secon(d D)iision, Eighth Ar)my Corps. SIR: I have the honor to report that early Monday morning, February 6, 1899, I sent the telegram appended, marked "A,' to brigade and division headquarters. IIaving liad no reply, I again urged the imlportance of the inovement. I was then instructed 1by (eneral MacArthur, who was then on the extreme left of the line, to forward mny colmmlunications to the departnment commainder direct, a copy of which is inclosed and marked "B." In reply to this I received a note from Colonel Barry, stating that lie would be out withl two battalions, and that we would then proceed to the waterworks. As nothing seems to be done, and it was implossible to get into communication with higher authority, and the insurgents were intrenching and massing in our front, I ordered the troops prepared for an immediate advance, hoping to have every Ireparation imad(e before the enemy could get into position. A copy of this order is inclosed, marked "C." At about 1 o'clock I received a message from Colonel Barry, saying tlhat lie would not be out, and about the same time the enemy's sharpshooters began firing upon us. Here I ordered the Utah battery to open fire on intrenched position north of road and about three-fourths of a mile from the Deposito. The action then began to be general all along our entire front, and the infantry fire was terrific on our left near the Alariquina-Manila road. We charged on them and took lhill after hill all the way to pumll)ing station. About three-fourths of a mile from the Dleposito a horse with a broken leg was found, which prove(l to have been the one ridden by Dr. II. A. Young, of the Utah Battery. His body was found horribly mutilated a mile farther on tlhe road. ()n our left, about 2 miles from the Deposito, Company- L, Captain Taylor, made a verv gallant charge on a stone intrenchinent and could not take the position at first. I thioulght the Twventy-third Infantry wvas up, but as Company L seemed to b)e falling back I ordered over three conimpanies, B, G, and 1I, of this regiment to reenforce the line. They all (charged a quarry, our troops losing 1 man killed and 4 wounded. The enemy broke, and as they retreated out of tle cover into the open they were severely handled, 17 being killed. After that they were shelled and flanked out of every position and kept on tlhe run. The line of their retreat was the direction of Mariquina. At 4.45 we arrived at the pumping station and found the mnachinerw intact excelpt tlhe cylinder and valves, which had been hidden under the coal. Companies 1) and I of thle First Colorado, under Major (:rove, (lid valuable service on tlhe right (during tle advance. The Tennessee battalion, under Major Cheatham, formed our right flank and was slighltly refused. As 1sual tle Utah Battery (A) (lid most excellent service. Tihe battalion of the Twenty-third Infantry on our left followed the general directioni of the 5Mariquina-Manila road and protected our left flank. I inclose copy of tihe order I sent Major Goodale, who received it near the p)owder mnagazine. We threw outposts to the front, left, and right, and put one conmpany at the pumping station. Very respectfully, JOHN I M. STOTSENuUR(;. blonel, F1;r.st Nebraskla United States l olunteer Infantry. It was soon evident that the insurrection was general throughout the greater portion of the archipelago. On March 2, 1899, in view 215 of this insurrection, Congress authorized the Presidlent to increase the Regul1ar Army from 27,500 men to 65,000 and to raise and equip 35,000 volunteers. And againIn view of the provisions of the act o)f March 2, 1899, requiring the muster out of the volunteers not later than July 1, 1901, and of thle utter inadlequacy of the Regular Army after that (late to mneet existing con(litions, Congress, l)y the act of February 2, 1901, authorizedl its increase to 100,000 men. (Rept. Adjt. (;en. U. S. A., 1901, 8.) In this act Congress twice directly refers to the conditions existing in the Philippines, as follows: SEC. 36. That when in his opinion the conditions in the Philippine Islands justify such action, the IPresident is authorized to enlist natives of those islands for service in the Arnmy, to be organized as scouts, with such officers as he shall deemn necessary for their proper control, or as troops or companies, as authorized by this ac(t, for the Regular Army. The President is further authorized, in his discretion, to form. companies, organized as are corn)anies of the Regular Army, in squadrons or battalions, with officers and noncommissioned officers corresplonding to) similar organizations in the cavalrv and infantry arrms. The total numb)er of enlisted men in said native organization shall not excee(l twelve thousand(, and the total enlisted force of the line of the Army, together with such native force, shall not exceed at any one time one hundred thousand. * -* * * * * * SEc. 41. That the dlistinctive badges adopted by military societies of nmen "who served in the armies and navies of the United States during the S)anish-Amnerican war (tod the ii('ideot insR.rrection, i the lhilipl)ines" mnay be worn upIon all occasions of ceremony! lbv officers and(l men (of the Army and Navy of thle United States who are mllerners of said organizations in their own right. It is unnecessary to recite in detail the many actual encounters between the forces of the insurrection:nd the troops of the United States, by which this insurrection has been continued, nor the military operations which have beeni carried on for its suppression. It is sufficient to call attention to the fact that the Ulnited States htas been called upon to raise, equip, and transport to said archipeltago two arnlies and that the miilitary forces engaged ill meeting the exigcncies of the military situation therein range in number from (60,42() men and officers in December, 1'90(, to 4T,9!49 on August 31, 19(01. Congress has been informed constantly as to the existence of said insurrection anld the llilitary ni1easures undertaken to suppress it, and has voted tmen and means for conducting the military operations, whenever necessary. Were further sanctionl require(d it is to 1be found in the expression of approval registered by the sovereign people at the Presidential election in 1900. That a war so inaugurated, continued, and sanctioned authorizes the exercise of the rights of a belligerent by the United States authorities engaged in its prosecution <admits of no question. Since the authority of the United States to exercise the rights of a belligerent arises from the acts and operations of the persons enlaged in the insurrection in the Philippines and the efforts to overthrow the 216 government instituted in the islands by the United States, it follows that such authority is no more affected by the treaty of peace with Spain than it is by the treaty of peace with Mexico. So long as the United States is authorized to exercise the rights of a belligerent there are no limitations on such exercise excepting those imposed by the laws and usages of wvar. It will be seen that the question involved is not Are the Philippine Islands fwor-eiyn territory? but Are the Philippine Islands lhostile territory? The (etermination of this question belongs to the political branch of this Government and is to be made by the Executive, in the absence of Congressional action. It is one of those powers in the exercise of which the Executive binds the courts, and with reference thereto the United States Supreme Court say: And in this view it is not material to inquire, nor is it the province of the court to determine, whether the Executive is right or wrong. It is enough to know that, in the exercise of his constitutional functions, he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and (-;overnment of the Union. If this were not the rule, cases might arise in which on the most important questions of foreignl ju:risdiction there woull be an irreconcilable difference between the executive and judicial departmlents. By one of these departments a foreign island or country might be considered as at peace with the United States, whilst the other would consider it in a state of war. No well-regulated government ever sanctioned a principle so unwise and so destructive of national character. (Williams v. Suffolk Ins. Co., 13 Pet., 415.) In the Prize Cases (2 Black, 635, 670) the court say: Whether the President, in fulfilling his duties, as Commander in Chief, in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decidled by him, and this court must be governed by the decisions and acts of the political department of the Government to which this power was intrusted. He must determine what degree of force the crisis demands. The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case. By reason of the victory of the fleet under Dewey's command in Manila Bay, and the subsequent capture of the city of Manila by the military forces of the United States, the town and port became subject to military occupation by the forces of the United States. Under the laws and usages of war the military occupation of territory creates an obligation to provide for the administration of the affairs of civil government in the occupied territory. This obligation is binding upon the military authorities of the United States, and the resulting duty may be discharged by them. (Cross et al. v. Harrison, 16 How., 164, 193; Leitensdorfer v. Webb, 20 How., 176, 177.) Governments so created are intended to perform two services-promote the military operations of the occupying army and preserve the safety of society. (Ex Parte Milligan, 4 Wall., 127.) 217 For the accompllishment of these l)puposes such a government, to use the language of the United States Suprelme Courlt — may do anything necessary to strengthen itself and weaken tlhe enemy. There is no limit to the powers that nlla be exercise(l in suchl cases save those which are found in the laws and usages of war. * * * In such cases tle laws of war take the place of the Constitution anll( the laws of tie United( States as applied in timre of peace. (New Orleans r. Steamship Co., 20 W\all., 394.) Among the powers properly exercised by a mIlilitary government is the right to secure revenues for its own maintenance. President McKinley, in his communication to the Secretary of War dated July 13, 1898, written with reference to the government of civil affairs in Cuba under military occupation, said: One of the most important and most practical l)rolblemis with whichi it will be necessary to deal is that of the treatinent of property a.nd the collection and adlninistration of the revenues. * -* *.;- - * While it is held to be the right of the conqueror to levy contributions upon the enemy in their seaports, towns, or provinces which mlay bei in his iilitary possession by conquest, and to apply the proceeds to defray the expenses of the war, tills right is to be exercised within such lilitations that it may not savor of confiscationl. kAs the result of military occupation the taxes and duties payable by tlhe inhalitants to the former government becomes payable to the military occupant, unless lie sees fit to substitute for them other rates or modes of contribution to the expenses of the government. The moneys so collected are to, be used for tlhe purpose of paying the expenses of government under the military occupation, such as the salaries of the judges and the police al(n for the paymllent of the expenses of the army. (See G. 0. No. 101, A. G. 0., series 1898.) In New Orleans ',. Steamship Co. (20( Wall., 394) the court say: The conquering power has a right to displace the preexisting authority and to assume to such an extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. It rnc!l prescribe t1he rerentes to be }ptid (tlad t)ppll tihem to it.s olai use or otherwise. The military government of the Philippines adopted the plan of imposing custom duties on imports into and certain exports from said islands. The order so to do was issued on July 12, 1898, by William McKinley as Commander in Chief of the Army and Navy of the United States of America, as follows: IEXECUTIVE 3MANSI(N, July 12, 1898. By virtue of the authority vested in me as Commander in Chief of the Army and Navy of the United States of America, I lo herel, order and (irect that, upon the occupation and possession of any ports and places in the Philippine Islands by the forces of the United States, the following tariff of duties and taxes, to be levied and collected as a military contribution, and regulations for the administration thereof, shall take effect and be in force in the ports and places so occupied. Questions arising under said tariff and regulations shall be decided by the general in command of the United States forces in those islands. 218 Necessary andt authorized expenses for the administration of said tariff and regulations shall be paid from the collections thereunder. Accurate accounts of collections and expenditures shall be kept and( rendered to the Secretary of War. WILLIAM MICKIlnEY. The tariff of duties and taxes established by said order contains the following provisions regarding exports: PAR. 4. * * * No prohibited or contraband goods shall be exported. II. EXPORT DUES. On the products of the Philippine Islands when exported therefrom there shall be levied and collected an export tax as follows: Pesos. 297. Abaca, raw or wrought hemp. --- —-—... --- ——....-. 100 kilos gross. 0. 75 298. Ilndigo. ----....- -...... do..-.50 299. Indigo, employed for dyeing ("tintarron" ).-...................do-...05 300. Rice -—..........................................................do. 2. 00 301. Sugar -.........................................................do-..10 302. Cocoanuts, fresh and dried (copra) -..-.-.....-..............do....10 303. Tobacco, manufactured, of all kinds and of whatever origin -.....do-.. 3. 00 304. Tobacco, raw, grown in the provinces of Cagayan, Isabela, and New Biscay (Luzon islands)....-........... ---. —.-........ 100 kilos gross. - 3. 00 305. Tobacco, raw, grown in the Visayas anld Mindanao islands........do... - 2. 00 306. Tobacco, raw, grown in other provinces of the archipelago..... do.... 1. 50 (See Customs Tariff and Regulations for the Philippine Islands, July 13, 1898.) Subsequent provisions respecting export duties were made as follows:.72. Export duties paid in Cuba, Porto Rico, or the Philippine Islands will )be refunded on the return of the merchandise to those islands without having been advanced in value or changed in condition by any process of manufacture while abroad. * * * -* * *-X-.374. Mlerchandise imported into the Philippine Islands upon which duty has not been paid may be reexported without payment of duty upon payment of wharfage, harbor dues, 2 per cent ad valoremi, and storaSg, if any. The reexporter shall at the time of reexportation deliver to the collector of customs such guaranty as the collector may require, agreeing to pay the full t(uties on the goods reexported, or deliver to the said collector within a reasonable time, to be fixed by the collector, a certificate showing that the goods have been landed at the port to which they were reexported, which certificate shall be signed by the consignees, master of the vessel in which the goods are reexported, and the chief revenue officer at the portof final destination. (See Customs Tariff and Regulations for the Philippine Islands, containing the amlended tariff provisions to September 1, 1899, issued by the office of the United States military governor in the Philippine Islands under date October 23, 1899.) There can be no doubt of the authority of the President, as Commnander in Chief of the Army and Navy, to enforce the provisions above quoted at the time the order was issued, July 12, 1898. (Dooley r. United States, 182 U. S.; Cross r. Harrison, 16 How., 182; New Orleans ',. Steamship Co., 20 Wall., 387; Thirty Hogsheads of Sugar, 9 Cranch, 991; Fleming Y. Page, 9 How., 603; Am. Ins. Co. v,. (Canter, 1 Pet., 511.) When New Mexico was conquered by the United States, the executive authority of the United States properly established a provisional 219 government, which ordained laws and instituted a judicial system; all of which continued in force after the termination of the war, and until modified by the direct legislation of Congress, or by the Territorial governmlent establlished by authority of Congress. In Leitensdorfer r. Wetbb (2() How., 178) the Supreme Court of the United States say: Accordingly we find that there was ordained by the lrovisional government a judicial system, which created a superior or appellate court, constituted of three judges; and circuit courts, in which the laws were to be adtlinistered by the judges of the superior or appellate court, in the circuits to which they should be respectively assigned. nB tile same authority the jurisdiction of the circuit courts to be held in the several counties was declared to embrace, first, all criminal cases that shall not lbe otherwise p)rovided by law; and, second, exclusive original jurisdiction in all civil cases which shall not be cognizable before the prefects and alcaldes. (Vide Laws of New Mexico, Kearney's Code, p. 48.) Of the validity of these ordinances of the provisional government there is made no question with respect to the period during which the territory was held by the United States as occupying conqueror, and it woul( seem to aldmit of no doubt that during the period of their valid existence and operation these ordinances must have displaced and superseded every previous institution of the vanquished or deposed political power which was incompatible witlh them. But it has been contended that whatever may have been the riglhts of the occupying conqueror as such, these were all terminated by the termination of the belligerent attitude of the parties, and that with the (lose of thle conitest every institution which had been overthrown or suspended would be revived and reestablisled. The fallacy of this pretension is exposed by the fact that the territory never was relinquished by the (conqueror nor restored to its original con(dition or allegiance, but was retaine(d by the occupant until possession was mature(l into absolute plermanent dominion and sovereignty; and this, too, unlder the settled purpose of tlie United States never to relinlquish the possession acquired by arms. lae_ com'tlde, tflerefore, that the ordinances and institutions oj' the provisional gorernmOent 'irod(1 be reroked or modified!by the United,(taes alone, either by direct legislation o. tlle p)(rt of Con/ress or by itadt of the Territori(l flovermnent in the e.xercise of powers dlelegated by (:omgress. The particular one of the "ordinances and institutions of the provisional government" of the Philippines now under consideration has not been "revoked or modified by the United States, either by direct legislation on the part of Congress or by that of the Territorial government in the exercise of powers delegated by Congress." In H'amilton e. Dillin (21 Wall., 87-88) the United States Supreme Court say: In Cross r. Harrison (16 How., 190) it was held that the President, as Commander in Chief, had power to form a temporary civil government for California as a conquere(l country, and to impose duties on imports and tonnage for the support of the (overnment, and for aiding to sustain the burdens of the war, wchich were held valid watil (Cogress sow fit to soupersede them; and an action brought to recover back duties paid under such regulation was adjudged to be not maintainable. But these trade regulations do not depend upon Congressional inaction for force and effect. So long as the insurrection continues the President, as Commander in Chief of the military forces of the United States, will continue to have the-authority to regulate and control trade with the hostile territory by the exercise of belligerent 220 right, and may prohibit all trade therewith or permit it on such terms and conditions as he sees fit to impose. The question of the right of this nation, b)y the exercise of its war powers, to regulate trade with territory affected by insurrection arose during the civil war.t. It will be recalled that President Lincoln, by proclamation dated April 19, 1861 (12 Stat. IL., 1258), declared the ports of the relellious States blockaded, and that said action was taken by virtue of his right to exercise the war powers of the nation, as the occasion should require, without the previous assent of Congress. Subsequently Congress, in the exercise of the war powers of the nation, passed a number of acts regulating and prohibiting trade with the rebellious States. By the act of July 13, 1861 (12 Stat. L., 255-258), the.President was authorized, after certain preliminary measures for suppressing the insurrection, to declare by proclamation what States and what parts of States were in a state of insurrection against the United States; "and thereupon," the act proceeds to say, "all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue; and all goods, etc., coming from said State or section into the other parts of the United States, and all proceeding to such State or section, by land or water, shall, together with the vessel or vehicle, etc., be forfeited to the United States: Proi(dle(, 1Onwcev'cr, That the President may, in his discretion, license and permit commercial intercourse with any such part of said State or section, the inhabitants of which are so declared in a state of insurrection, in such articles, and for such time, and by such persons, as he, in his discretion, may think most conducive to the public interest; and such intercourse, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury." (Sec. 5, p. 257.) In pursuance of this act the President, on the 16th of August, 1861, issued a proclamation (12 Stat. L., 1262) declaring that the inhabitants of certain States were in a state of insurrection against the United States, and that all commercial intercourse between then and the citizens of other States was unlawful, and that all goods, etc., coming from said States without the special license and permission of the President, acting through the Secretary of the Treasury, or proceeding to any of said States, etc., would be forfeited, etc. This proclamation excepted from its operation, among other things, such parts of the enumerated States as might maintain a loyal adhesion to the Union and Constitution or might be from time to time occupied and controlled by forces of the United States. A subsequent proclamation, issued April 2, 1863 (13 Stat. L., 730-731), abrogated the said exception as embarrassing " to the due enforcement of said act of July 13, 1861, and the proper regulation of the commercial intercourse authorized by said act;" such abrogation, however, not extending to West Virginia or the ports of New Orleans, Key West, Port Royal, or Beaufort in South Carolina. 221 I submit herewith copy of section 5. act of July 13, 18c;1,:t a of the two Iproclamations issued by 1 President Lincoln lpursualit thereto. Also sectionis 5 and i of the act of July 2, 1864. (See Appendix A.) The laws above referred to are two of the enactments popularly known as the " nonintercourse acts." These acts are of continuing force and constitute sections 5300-5322, Revised Statutes of the United States, title " Insurrection." Said acts do nothing more thlall to declare the rule established by the laws and usages of war, and relate excslusively to insurrections in a State or several States of the Union. They clearly evidence that the legislative branch of this Government recognizes the authority to regulate commercial intercourse with insurgent territory by exercise of belligerent rights. Argument is unnecessary to establish that a national authority, based upon the laws of nations, which the United States may exercise over inhabitants of a State of the Union, may also be exercised over the inhabitants of aly territory subject to its sovereignty. The question of the right of the Federal authorities to tlius exercise the war powers of the nation in the matter of trade with the rebellious States was presented to the Supreme Court of the United States in many forms and by many cases. In each instance the court held that business intercourse between the citizens of States at war is unlawful without express declaration of the sovereign, the existence of the condition of war being sufficient to create the inability to lawfully engage in trade with public enemies. (United States r. Grossmayer, 9 Wall., 72; Hanger r. Abbott, i Wall., 532; McKee r. United States, 8 Wall., 163; Mitchell r. United States, 21 Wall., 350; Jecker v. Montgomery, 18 How., 110; The Prize Cases, 2 Black., 6f35: ITamilton v. Dillin, 21 Wall., 73; The Reform, 3 Wall., 1I17: The Sea Lion, 5 Wall., 630; The Ouachita Cotton, 6 Wall., 521; Coppel '. HIall, 7 Wall., 542; Mrs. Alexander's Cotton, 2 Wall., 404.) In Matthews v. McStea (91 U. S., 9) the court say: It must also be conceded, as a general rule, to be one of the immediate consequences of a declaration of war, and the effect of a state of war, even wihen not declared, that all commercial intercourse and dealing between the subjects or adherents of the contending powers is unlawful, and is interdicted. The reasons for this rule are obvious. They are that, in a state of war, all the members of each belligerent are respectively enemies of all the members of the other belligerent; and, were commercial intercourse allowed, it would tend to strengthen the enemy and afford facilities for conveying intelligence and even for traitorous correspondence. Hence it has become an established doctrine that war puts an end to all commercial dealing between tihe citizens or subjects of the nations or powers at war, and "places every individual of the respective governments, as well as the governments themselves, in a state of hostility;" and it dissolves commercial partnerships existing between the subjects or citizens of the two contending parties prior to the war, for their continued existence would involve community of interest and mutual dealing between enemies. Still further, it is undeniable that civil war brings with it all the consequences in this regard which attend upon and follow a state of foreign war. Certainly this is so when civil war is sectional. Equally with foreign war it renders commercial intercourse unlawful between the contending parties, and it dissolves commercial partnerships. 222 The situation in the Philippines is as follows: The insurrection creates the condition of war; that condition prevailing, trade with the hostile territory is unlawful. To ameliorate this condition the commander in chief authorizes trade with certain parts in territory from which the insurgents are excluded by the military forces of the United States, but imposes customs duties on certain commodities as a condition on the privilege. This view is amply sustained by the decision of the United States Supreme Court in Hamilton v. Dillin. (21 Wall., 73.) That case arose as follows: During the progress of the civil war President Lincoln, pursuant to the provisions of the act of Congress above referred to (sec. 5, 12 Stat. L., 257), providing that trade with the rebellious territory should be carried on "only in pursuance of rules and regulations prescribed by the Secretary of the Treasury," adopted and enfotced a rule permitting the purchase of cotton in any insurrectionary district and to transport the same to a loyal State upon the payment to the Government of 4 cents for each pound purchased. From August, 1863, to July, 1864, Hamilton secured permits to purchase and ship to loyal States large quantities of cotton, amounting to over 7,0(,000() pounds, and paid thereon at the rate of 4 cents a pound. The cotton was purchased at Nashville, Tenn., during the time that city and district were within the lines of the Federal forces and at a time when the United States exercised full administrative and legislative authority over said town and the State of Tennessee. It will be recalled that at the period indicated, Andrew Johnson was acting as governor of Tennessee under appointment by President Lincoln. Hamilton brought suit against Dillin, surveyor of the port at Nashville, Tenn., to recover the amount paid on said permits, contending that the President had no authority to require its payment, since Congress alone had the right to lay taxes, duties, inlposts, and excises, and that the rule enforced against him became null and void when Nashville passed into the possession of the Union forces and became subject to the sovereignty of the United States. The United States Supreme Court denied his right to recovery. The court held (syllibi, Hamilton r. Dillin, 21 Wall., 73, 74): The Government of the United States clearly has power to permit limited commercial intercourse with an enemy in time of war, and to impose such conditions thereon as it sees fit. This power is incident to the power to declare war and to carry it on to a successful termination. It seems that the President alone, who is constitutionally invested with the entire charge of hostile operations, may exercise this power; but whether so or not there is no doubt that with the concurrent authority of the Congress he may exercise it according to his discretion. The charge of 4 cents per pound required by these regulations was not a tax, nor was it imposed in the exercise of the taxing power, but in the exercise of the war power of the Government. It was a condition which the Government and the Presi 223 dent, endowed with the powers thereof, il the exercise of supreme and absolute control over the subject, had a perfect right to impose. The condition thus imposed was entirely in the option of any person to accept or not. If any did accept it and engage in the trade, it was a voluntary act, and all payments made in consequence were voluntary payments, and on that ground( alone (if there were no other) could not be recovered back. Nashville, though within the national military lines in 18(3 and 1864, was nevertheless hostile territory, within the prohibition of commercial intercourse, being within the terms of the President's proclamation on that subject, which proclamation in that regard was not inconsistent with the act of July 13, 1861, properly construed. The civil war affected the status of the entire territory of the States declare(l to be in insurrection except as modified by declaratory acts of Congress or proclamation of the President. In the body of the opinion the court say: There can le no question that the condition reiquiring the paymient of 4 cents per pound for a permit to purchase cotton in and transport it from the insurrectionary States dluing the late civil war was competent to the war lpower of the United States Government to impose. The war was a public one. The (Governmnent in prosecuting it had at least ail the rights which any belligerent power has when prosecuting a public war. That war was itself a suspension of commercial intercourse between the opposing sections of the country. No cotton or other merlchanldise could be lawfully purchased in the insurrectionary States and transporte(I to the loyal States witlout the consent of the Government. If such a course of dealing were permitted at all, it would necessarily be upon such conditions as the (Governmlnellt chose to prescribe. The war power vested in the Government iml)lied all this without any specific lmention of it in the Constitution. *X- * * * *X * * By the Constitution of the United States the power to (eclare war is confide( to Congress. Thle executive power and the command of the military and naval forces is vested in the President. Whether in the absence of Congressional action the power of permitting partial intercourse with a public enemly may or may not be exercised by the President alone, who is constitutionally invested with the entire charge of hostile operations, it is not now necessary to decide, although it would seem that little doubt could be raised on the subject. * * — * * * * * The Government chose to impose this condition. It supposed it had a right to do so. No one was bound to accept it. No one was compelled to engage in the trade. Not the least compulsion was exercised. The plaintiffs endeavor to )ut the case as if they were obliged to pay this exaction to save their property. This is not a true view of it. It is admitted that the property was purchased under the license. If so, it was also purchased in view of the regulations to which tle license referred. The regulations themselves show that the permit to purchase and the permit to export were correlative to each other; that no one was permitted to purchase who did not enter into bond to pay all fees required by the regulations, amongst which the charge of 4 cents per pound on cotton was expressly inserted. In short, the permit to purchase and export constituted substantially one permit, and that was granted only on the condition of paying the prescribed fees, as before stated. * * The case does not come within any class of cases on which the plaintiffs rely to take it out of the rule as to voluntary payments. In our judgment, therefore, the defense in this case might have rested on this ground alone. * * * * * * * 224 The position that Nashville, being within the national lines, was not hostile territory in 1863 and 1864, and, therefore, not within the prohibition of commercial intercourse contained in the act of 1861, is not tenable. The State of Tennessee was named in the President's proclamation as one of the States in insurrection; and, as we have seen, the exceptions made in his first proclamation in favor of maintaining conml ercial intercourse withl parts of such States remaining loyal or occupied by the forces of the United States were abrogated by the proclamation of April 2, 1863, except as to West Virginia and certain specified ports. There was nothing in this action of the Presilent repugnant to, or not in conformity with, the act of 1861. "This revocation," as remarked by the court in the case of The Venice (2 Wall., 278), "merely brought all parts of the insurgent States under the special licensing power of the President, conferred by the act of July 13, 1861." The act gave the Presi(lent power, where a State or part of a State remained irreclaimable, to declare that the inhabitants of such State, or any section or part thereof where such insurrection existeld, were in a state of insurrection. This power clearly gave the President a discretion to declare an entire State, where the insurrection was persisted in, or only a hostile district therein, in a state of insurrection. Finding the attempt to discriminate between the different parts of a State (except in peculiar cases) impracticable, he abandoned the attempt, and dleclared the entire State in a state of insurrection. IHe clearly had the authority so to do, more especially as the insurrection was suI)ported by State organizations and the actual State authorities. Thenceforth the war became a well-defined territorial war, and was in great measure conducted as such. The further provision of the act, that all commercial intercourse with the insurrectionary districts should cease "so long as such condition of hostility shall continue," could not be construed as allowing such. intercourse to be resumed by in(lividuals at will, as fast and as far as our armies succeeded in occupying insurgent territory. The "condition of hostility" remained impressed upon the insurrectionary districts until it was authoritatively removed by the proclamation of the President at the close of the war. * * * But it is unnecessary to pursue this subject. We have frequently held that the civil war affected the status of the entire territory of the States de(clared to be in insurrection, except as modified by declaratory acts of Congress or proclamations of the President; and nothing but the apparent earnestness with which the point has been urged would have led to a further discussion of the point. *X- -X- * — -* * * * It is hardly necessary, under the view we have taken of the character of the regulations in question, and of the charge or bonus objected to by the plaintiffs, to discuss the question of the constitutionality of the act of July 13, 1861, regarded as authorizing such regulations. As before stated, the power of the Government to impose such conditions upon commercial intercourse with an enemy in time of war as it sees fit is undoubted. It is a power which every other government in the world claims and exercises, and which belongs to the Government of the United States as incident to the power to declare war and to carry it on to a successful termination. We regard the regulations in question as nothing more than the exercise of this power. It does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government, just as much so as the power to levy military contributions, or to perform any other belligerent act. In Ketchum v. Buckley (99 U. S., 188, 190) the court say: It is now settled law in this court that during the late civil war "the same general form of government, the same general law for the administration of justice and the protection of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterwards." 225 Notwithstanding the fact of this jurisdiction, the court say in New Orleans '. Steamship Co. (2( Wall., 387): Although the city of New Orleans was conquered and taken possession of in a civil war waged onl the part of the United States to put (Town anl insurrection and restore tile supremacy of tile National (;overnilent in the ('Cnfedlerate States, tlat Government had the salme p)wer anit rights ill territory leld 1l)v co(quest as if the territory h1ad l)elongled to a foreeign country amnl had been subjugate(l in a foreigl war. III. TI1E RI(HT T') 1I'E(ULATI1' TRADE WITH TERItITORY SUBJECT TO 31IIITAIIY OCCUPATION. The Instructions for the (Governmllelnt of Armies of the United States in the Field lprovide as folloxws (sec. 5, p)ar. 1): All intercourse between territories occuplicd l)!v belligereni t armlics, lwether 1y traffic, by letter, by travel, or in alny other way, ceaTses. This is tlle geileral rule, to be observed w-ithout spec'ial proclamation.,Excepltions to tlhis rule, whlether by safe coinduct, or permissioni to trade on a small or large scale, or 1y exchangingll mails, or )by travel from l olIe territory into tlle other, cal take pliace (only according to agre(emtent approved 1) tlhe (iovernmenlt or by the hilllest llilitarv authority. Contraventions of this rule are llighly lpnishalle. In I'leminoig. IPa-e (9 How., 6(15) thle court saV: It is true tllat when Talllli(c hlad been suT},jugated (,tller nlations w\ ere 1)llld to regard tile country, while our possession conltilue(d, as thle territory of tile IUitod States all( to resi)ect it as such1. * * * Tile citizelns of 1(, otlher natioI, thlerefore, had a riglht to enter it wvithout the!ermlissioll of tlie A;mlericlan authorities, nor to lhold intercurse witll its inhabitants, ior to trade with thllem. The rule laid ldown 1y (Chancelllor Kent is as follows: The law has put the sting of disability into every kind of voluntary communll ication and contact \with an enemyl whiich is madl e witlout the special permissi on of tlie governmernt. There is wisdom lanl d plicy, ipatriotism al(n safety, ill this plrilicil)le, and every relaxation (of it tends to corrupt tile allegiance of tile subject anld to i (rolomg the calamlities of war. (16 Johnson, 459, 460; Unite, States?. (;rossnlaer, 9 Wall., 72.) It matters inot whetller property lie boughlt (Ir soldl, or mlerely transl)rted alnd shipped, the contaminalltion of forfeiture is co(sullllated tlie mlloent it lbecomces tlhe object of illegal intercourse. (The Rapid, S Cranch., 155; The Sally, 8 Crancll., 382; Wharton's Conflict (of Laws, sec. 497.) Birk!himer, in his work on Military (Tover'nment (and M'artial Law, says (p. 204): One of the most important incidents of military governmellnt is tile regulation of trade with subjugated districts. The occupyillg state has an ulllluestioned right to regulate commlercial intercourse with tlie colnluered territory. It navy be absolutely prohibite(l, or permitted to be ullresticted, or such limitations mlay be imposed thereon as either policy or a proper attention to military measures may justify. While the victor maintains tle exclusive )ossession of the territory his title is valid. Therefore the citizens of no other natiol have a right to enter itwithout the permission of the dominant power. Much( less can they clain an unrestricted right to trade tllere. (See also Bluntschli 1, sec. 8; Manlining, p. 167; Fleming r. Page, 9 Ilow., 603, 615.) Birkhimer further says (p. 230): It is not tile practice of military comnllanders to deal gently with those who, wlile accepting the benefits of the Goverlnment which in anmelioration of the strict rules of war has I)een established over them, seek to ilmpair its lpower or adhere to tile enemy by giving him aid and comfort. In this respect tlere is no difference il the situation of persons inhabiting territory militarily occupied. Whether subjects of the vanquished state or of a neutral power, their obligations are equally strong to do nothing to prejudice the interests of the government which the conqueror establishes over 1394-03.15 226 them, and as to all persons who di(l not reside or were not found in tie territory when it was occupied, whatever mlay be their nationality, the conqueror alone (letermines upon what terims, if at all, tlhey shall be perlnitted( to either enter tlhe oc((npiedl district or to hold coinllunication or lbusiness relations with thle illhabitants thereof. Either to admlit tllem or to permit intercourse is a relaxation of the strict rules of w-ar. (See also IIangrer r. Abbott, 6 Wall., 535.) In Dooley o. United States (182 U. S., p. 222) Mr. Justice Brown, deliveringi the opinion of the court. says: Upon the c-)cup)ation of the country 1,y the llilitary forces of the t'nited States the authority of the Spanishl ( overnlentt was superseded, but the necessity for a revenue did niot c'ease. The governnlent iumust lbe carried on, and there was no one left to a(llilister its functions but the nuilitarv forces c f the initedl States. MIonev is requisite for tllat purpose, and lloney could only the raised( by order of the rlilitlary coinmmander. Tile lmost natural nlethod was by the continuation of existing duties. In ad()opting this methodl General 'Miles w-as fully justifie(l l)y the laws of war. Tle doctrine u)ponl this subject is thus summled up by Ilalleck inll his work on International Law (\ol. 2, p. 444): "The right of one b1elligerent to occupy and govern the territory of the enemlly while in its military possession is one of thle illcidents of war an(l flow-s directly froln tlle rigrilt to conquer. We tlheref(ore ldo not look to the Constitution or political institutions of tile c(lnqueror for atuthority to establlish a government for tlhe territory of the enemny in his possession (luring its military occup)ation, nor for the rules by whllich the l)owers of such government are regulated aid linitel. Such authority and such rules tire deriv\-ed (lirectly from the laws of war, as establishel by thle usage of the world an(l confirmed( by the writings of publicists and (decisions of courts-il fine, from the law (o)f nations. * * * The municipal laws of a conquered territory, or the laws which regulate p)rivate rights, colntinue in force during military occupation, except so far as they are suspen(led or lchanged by the acts of the conqueror. * * * He nevertheless has all the powers of a (le facto government, andl can at lhis pleasure either change the existing laws or make new olmCS. In New ()Orleans r. Steanmship Co. (20 Wall.,:887, 3t93), it was sai(l, with respect to the powers of the military governmnent over tlhe city of New Orleans after its conquest, that it had "the same power and riglhts in territory hel(d by con(luest as if the territory lhad l.)elonged to a foreign country and had beenI subjugated in a foreign war. In sutch cases the conquering power has thle rig}ht to (lisplace tlle preexisting authority, and(l to assume to such an extent as it may (leent prop)er, the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, accor(ling to its pleasure. It may prescribe the revenues to be pai(l, and apply themn to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no linlit to the powers tlhat may be exerte(d in such cases, save those which are found in the laws and usages of war. These principles llave the sanction of all publicists who haxve considered the subject.'" (See also Thirty lHogsheads of Sugar, 9 Cr., 991; Flemning. Page, 9 HIow., 603; American Ins. Co. '. Canter, 1 Pet., 511.) But it is useless to multiply citations upon this point, since the authority to exact similar (luties was fully considered and atfirined by this court in Cross v?. HIarrison (16 How., 182). This case involved the validity of duties exacted by the military commander of California upon imports from foreign countries from the (late of the treaty of peace, February 3, 1848, to Novemnber 13, 1849, when the collector of customns appointe(d by the President entered upon the (duties of his office. Prior to the treaty of peace and from August, 1847, duties had been exacted by the military authorities, the validity of which does not seem to have been questioned. Page 189: "That war tariff, however, was abandoned as soon as the military governor had 229.7 received from- Washingtoni inforn-ation of the exchange and ratification of the treaty with 'Mexico, andl duties were afterwards levieil iii conformity with suchi as Congress had imposed upon foreign. merchandise importedl into other lports of the United States, Tipper California having beeni ceded by the treaty to the United States. The duties were heldl to have been legally exacted.'' Speaking of time duties exacted before the treaty of peace, MAr. Justice Wayne observed (p). 190): "No one c-an (loubt that these orders of time President, andl the action of (dir army and navy commnanders in California in conformity with thiem, was according to the law of arnus and the, right of conquest, or that they were operative until the ratification and( exchangre of a treaty of peace. Such would be the case upon. general principles4 in respect to war and peace b~etween nations.'' It was further held that the right to collect. these duties coutainue( fromn the dlate of the treaty up to the tiiie when official no tice of its ratification. andl exchange was receiveil in Califoriiia. Owing to the fact thwat. no telegraphic communicatioin existedl at that tinie, the, news of the ratification of thlis treaty did not reach C~lifornia until Aug~ust 7, 1848, (luring whiich time the war tatiff was continue-d. Thie, question (loes not arise iii this case, as the ratifications o)f thle treaty appear to have beeii kmnXwi as sooni as they were exchlanlged. The court furthier held in Cross z. Harrison that the righit of thle imilitary coin-i mandler to exact the duties pirescribed by the tariff laws of the limited 'States continue(1 until a collector of custniis lmad been. appIointed. Said tle, court: The government, of which Col)oniel M1ason. was thme executive, hald its origin in the lawful exercise of a belligerent righit over a conquered territory. It liaid beeni institutedI by the command of the President of the Ui.'iited( States. It was the government. Xlien the territory m-as cedled as a coiiquest, aiii it. (id not leasue as a miatter o)f couirse or as a necessry coinseqluence of the restoratioin of p)eace. Tle, President ni~niht hiave dissolved it bv w ithdrawing the ann v aiol. navyT officers who administeredI it, but. he (ii( not dlo so. C ngress (0011d have put ain cuid to it, lbut that was not. don)ie. The right inference ftrona the inaction. of bioth is, thiat it was muneant to lie continuieid until it had been ii K i latively chaqnged. We thinuk it was continued ovem' a eede(le conques- twXithout any violatioin (if the Conustitution or law~s of the United States, and that, until C( oiigess legislated for it, the ilities upon foreign goods~ imported iit~ii S~_an Francisco weelegally demianded antid lawvfully received liv MIr. Hris-I tlecl lector of the lport, whll. receiveil his appointineint, according to instructions, from Washington, fromt Grovern ir M\ason.'' it \would therefore seeni — 1. That in territorv rendered hostile bv the existence. of an hisurrection ag-aitnst its afuthoritv the Unlitedl States niay exercise the war powers of the nation, knowii to international lItXv amid time laws and usages of war as belligerent rights. 2.That the lpavnient of customs duties, if considered as taxes levied by a governmnemiit resuiltingy fronm miniiitary occuipation of hostile territory; ot. as military contribution~s reqjuired from hostile territory; or as a condition itnposed uipon the right of trade with hostile territory, are each anid all legitimate and lawfutl requtirements imp~osed by exercise of lbelligerent right. 3. The military occupier of districts in hostile or enemnies' territory is authorized to reguilate trade in the districts subJject to his occupation, as his discretion, with reference to the military situation,shall determine. 4. That the Presidont is authorized to exercise thme authorityv to regulate trade with hostile territory in the absence of Congressional provision in regard thereto. 228 Attention is called to the fact that so long'y as the Philippine Islands are governed l)v the, war powers~ of the nation, manyv initernationlal question-s are avode ----suI('h, for insftance, as the effect of the, transfer of sovereign itv upon the prioi treaties between Spain, Germny ad Enigland resp~ecthing tradle and other privileges ill the. Jol6( anld other islands; the ex(cllsion- of Chinese persons, subjects of Chinta, (heat Britaini, anid other nationis; the regulationi of coa-stwvise anid other ship)p)ing; the navigation- of the maritime waters of the airchipelago; the da) 01' ucin1) h intrgents of property owned by s iljects of neuitral nationsl; tile mianv delicate and intricate qutestiotis involved inl whiat is, (lesignated 'tihe op~en d1001 in the 1Philipp~ines," et(c. Questions of the character above indicaited have beeni presented to the V1nited States 1 )v the Grovernmen101t s ot' Spain, (ierniany, Great Britain., France, Swvitzerland, and Climt zinnnd also b y niany (citizens of the 'trii~ted States. At present the Uniited Stattes is aide to jnistifyv its, conilnct of aiffair's inl the Philippines~ by irefer'ence to the e-stablished. well-recogniized laws of nations r'espect'ting territory grovernied iny the war powers of a niationi, anid suich juistificatilon is accepted,and acceptable to the, othem' ilatioils interestel o1r inivolved. If, however, sitclh action sliotild ile taken as wouldl indlicate or establish that the U'nited States inl governing' the Phil ippi iics had ah.)andloied reliance iipon the laws and usages of nations,- respectiiig- hostile tei'ritoi'v sul)iect to mn1ilitar'y occupationi, these international ('oittloversies wouild becomne acuite an(1 the situa"tion inl the, iP1ilippinle'- furtither comnplicatedl, to the possible embarrassment of the United States. IV. HAS THE, POLITICAL PBRANCiL OF THlE U1NITED) STATES GiOVERNMENITT TAKEN SUTCH ACTION REGARD)ING1 THE' PHILIPPINES AS EVID)ENCE'S A RECOG1NIT10ON\ OF THlE TERRITORY OF THE ISLAND)S AS PEACEABLE INSTIE'AI) OF hOS TILE,. In considering' this question it must Ibe r'eniemiered that tile ter'ritory became hostile lbv reason of tihe coiIdiict of the inihal)it~ants engag~ed in the insurrection. While, the insuh'1ectiol (continues to lbe w'aged by armed for'ces 01' bodies of insurgents,, the terriitorv will. remain hostile, in fact, regyardless of the actions or' desi4res of the executiv.e departiment or the political branch of this Goverunient. At present the military situation jim the P~hil ippines requiles the matinteiiance therein byv the United States of anil armyv of 1.711 officers aind 46,2832 enlisted mien, and also a naval squadron of tile national ships, all of which are actively engag'ed in mnaintaining' the auithority of the Uniated States iii said archipelago. Fronm. tille t~o tinle, as the insur'gent forces were scattered or driven out of pol'tionls of the islands,,; the tei'ritoi'y was, occupied by the tr'oops of the Unt';aled States, and thereupon the aff airs of civil govermient in the terlritor y s4ulject to miflitary occulpation wem'e adniinistered byv the military authorities. This,administl'ation was attempted 2 2 9 pursuaint to the olbligattons of international htaw requiring the successful inivader to provide a sulhstit-Itte for the civil governmllent which has 1been Overthrown. (Brussels P~roject of anl I nternattjimia IDeclaration concernhing Law's antd Customs of War, see. 2; Imn4ructions, for the G~overnm-lenit of Armlies of the U idtedl States in the Field, sec. 1. CL. 1-7.) IPomerov says: Mlilitary government is tbe antihorityv by whiclh a conmlnan(Ier go)vernis a conquered (list rict whien the local institntions havN'e beeti overthrown andl the 1 cal rnlers (iSlplacedl, a-n(1 hefore, Congres's has hadl an opportunity to act undler its power to dlislpose of calptures otogovern territories. This authority infatblnsothPr.,ilet anl(l it a~-ssunes the warl to(. be still raging and the final statuis of the conilueredl l)rovTmeie to he (icterinined, s that. the apparent. exercis~e of civil functions 5s really1 a1 nwoasweol hotqlt. (PIomeroy's Constitutional Law, Bennett's 31_) edl., par 712, P). 5 95. Iin ordler further to wetaken the, hitisuiretion and promote the, cause for wihich the armies of the United States wvere t-lighitin in the, Philippines, 1Presiden t McKinley attempted, as occasions permnitted, to arrange. for the adminlnistration of the affairs of civil goverinment ini portions of the islanids byv civilians instead of the inilitalry authorities, anld to inlaug-urate., if possible, local governments essentially popular. T[his was phtinll a(. wart m1-easure. landi in aidopting it. President McKinley followed the examiple set by, Presideint Lincoln duringr the (civil war. Tefirst effort in, this direction was,- the order of ~January 20, 1899, alppointi og the first Philippinie Commnission. Mu litarv nlecesite restd11ting- fromn the. insurrect ion preventedi the accomipiishneto h l)urpI)05C of this Conimission. -anti for- af timie the, plan wtas held in a})evance. Inl March. i)00, it was considered that the success Of our Army over the forces of the, insurrection enabled oitr troops to hold and control territory sutificient to justify the further attenmpt to carry oitt the orinrinal intention to transfer the admiinistration of the affairs of civil governm11ent to civilians;. Oit March.15, 19100, the President issued an order contemplating "the return of the Commission, Or such of the miembers thereof as (alln lbe secuired, to aid the existing- authorities and facilitate this work throughout t~he islands." (Messag(e to Congress, Decemiber 5, 1899.) The authority conferredt utpon t~he Comminssionl, and the general subjects respectingy which the:authority was to be exercised, were set f orth in a commnunication f romi the President to the Secretary of War. dated April 7, 1900, containing certtain instructions to be comm-unicated by the Secretary, of War to the Commnission. As stated therein, the Comimission was created "to continue and perfect the work of organizing and estabJ)lishing) civil government already commenced by the inilitarvy authorities." To promote this general purpose the Commission were instructed to devote their attention to the establishment of municipal governments in the cities and towns: the organization of government in the larger adinlnistrative divisions corresponding to counties. departments, or provinces; and, whenever the Commlission is of opinion that the condition of affairs in the islands is such that the central administration mllay salfely be transferred from military to civil control, they are to report that conclusion to the Secretary of War, with their recoimmendations: as to the form of such central government. On the 1st day of September, 190(), the authority to exercise the powers of governmeent in the Philippines which are of legislative nature, was transferred from the military governor to the Comnilission, to }be thereafter exercised 1by theni icder the direction and subject to the approval of the President, through the Secretary of War, until the establishment of the civil central government of the islands or until Congress shall otherwise direct. The Conmission were directed to e(xercise this leoislative authority in the making of rules and orders hav-ing the effect of law for the raising of reve-nue by taxes, customs duties, and imi)ortss the appropriation land expenditure of public funds of the islands; the establishment of an educational system to secure an efficient civil service; the organization and establishment of courts; the organization and establishment of municipal and departmental governments, and all other matters of a civil nature for which the military governor had been competent theretofore to provide by rules or orders of a legislative characte r. Certain but not all of the powers of the Philippine government of an executive nature were conferred upon the Comnission. The executive powers conferred consisted of the authority to appoint officers under the judicial, educational, and civil-service systems and in the municipal and departmental governments. Until July 4, 1!901, the military governor continued to be the executive head of the government of the Philippines and to exercise the executive authority not expressly assigned to the Commission, subject to the rules and orders enacted by the Commission in the exercise of their legislative powers. During this period th6 municipal and departmental governments continued to report to the military governor and were sul)ject to his administrative supervision and control, under the direction of the Commission. O.n June 21, 1901, the President appointed Hon. William H. Taft civil governor of the Philippine Islands, and directed that on and after the 4th day of July, 1901, the executive power of appointment, theretofore exercised by the Commission, should be exercised by said civil governor with the advice and consent of the Commission; that as to the portions of the islands wherein public order is restored and pro 231 vincial civil governments are established, the executive powers theretofore exercised therein by the militaly governor were transferred to the civil governor, and the provincial and municipal governments and officials required to report to the civil governor. The authority of the military governor was continued as theretofore existing in those districts in which inslurrection against the authority of the United States continuues to exist or in which public order is not suffiicently restored to enable provincial civil government to be established. On the 4th day of July, 1901, in the city of Manila. William H. Taft was inaugurated as the first civil governor of the Philippine Islands. Inasmuch as there are districts on the islands in which insurrection against the authority of the United States continues to exist, or in which pullic order is not sufficiently restored to enable provincial civil go-verlllent to be estab)lished. it follows that the powelis of civil government in said islands continue to be exercised by both llilitary and civilian officials. The military governor is the head of those districts wherein the affairs of civil government are administered by the military. 'The civil governor is the head of the government in those districts wherein the affairs of civil government are administered by provincial and municipal governments, conducted by civilians. The territorial subdivisions in w.hich the affairs of civil government are administered by civilians, and those in which said affairs are administered by the military authorities. are shown by the following table: (See Annual Report of the Secretary of War for 1!01, Appendix D, p. 15a.) Ph iliup)e Isl(ands-Pror'i(cc, uttbe'r ci'il (td)inisih'ttioli. Area (de-I A pproxio)f deflt 19 Idarid. Number. c(alproxi- pendmate opumate). islands. lation. Luzon: 'Sq. mles. Provinces............................................... 20 37,949 271 3,118,280 Municipal.............................................. 1 21........ M indanao................................................... 1 9, S 212, 067 Vislyanl group.............................................. 9 17,099 284 1,572,490 Total.................................................. 32 74,152 646 4,902,837 JIsl(ards (id prov'iorins rltuder militcary adm(tli.istrtti)On. Luzon (provinces)........................ 6,262 57 609,208 Mindanao (provinces)...................................... 6 27,641 150 283,592 M indoro (islands).................................................. 4,108 26 I 106,200 Pala;an and islands...................................... 5,037 | 135 5 52,350 Sulu Archipelago................................................. 1,029 188 22,630 Visayan group (three islands).............................. 3 8,884 236 i 973,418 Unassigned (two groups)................................. 0 145 24,838 Total............................................... 15. 53.701 i 937 2.072.236 __ - ____ - - -- - -- - - -- I 232 It will be observed that the differellie between "' military " oovernment and " civil" government in the Philippines is that in one the affairs of civil governmlent are administered by American eitizens who have entered the militarv service of the United States, while in the other the affairs of civil governmlent are administeredl vb Ame'ican citizens selected fron some other branch of the plublic service or fioni private life. There is also the further and subl:,stantial difference that under the "military " government the President authorizes the llilitarv commander, tacting as the head of the governiment, to exercise the powers of the three branches of goverlnment-legislative, executive. and judicial —while under the "civil" government the President pl'ovides that the powers of these three branches shall be exercised by (liftferent officials or bodies, although they continue to be united in the President. To ameliorate the conditions imposed upon tlhe inhabitants of this hostile territory 1) the insurrection, the President permitted trade with certain portions thereof, under certain restrictions anll subject to certain conditions. The authority exercised and the reasons prompting the exercise are the same as in the instance of an exchange of prisonels with the insurgents or according to captures the privileges of prisoners of war. Not all portions or ports of the archipelago are open to trade. The ports open to foreign trade are Manila. Luzon Island; Iloilo, Panay Island; Zamboanga, Mindanao Islland; Jolo, Jolo Island; Cebfi, Cebfi Island; Siassi, Siassi Island. The aniount of revenue derived from the privilege of trading through these ports is shown by the following table, prepared by the statistical branch of the division of insular affairs, War Department: COttoms dutives collected bi~ the Plilip)ines. on merchu.ndise, from ltuglts 22, 189,', to June 30, 1901. On imports: From United States.......................................... 1,607,86. 00 From Spain.............................................. 1, 993, 990. 00 3, 601, 476. 00 On exports: To Unitedt States................................ -. --. 305, 69'9.00 To Spain..................................................... 211, 745.00 517,444.00 On exports to all countries, same period.......................... 1, 723, 173. 41 233 As to the total nulmber of p)oints in the islands to be reac-hed by navigaCtionl, thle only au1thenitic inlforma1"tionl available in the Tinsular Division of the WVar- Departnient is foundl onl pages.1t57 to 240, Volume iII, Report of Philipp~ine CoiliiniSsionl tor 1.900. Fromn time to timie tihIe siet informied Con&o'ress as, t~o the course pursue d in the tidmiinistration of the affairs of civil goverinment in the Philippines, and. Cong-ress tacqu je'sceti therein. Fl nallv, 1v the leg-islativ-e action known as the. Spooner amiendmnent "to the armyi appropriation bill, approvetl -March 2. 1901I, the Congrless ratifiedI anid coinfred the atction of the, 1)iresidlent in said mnatter-s andl assented to the further continuvance of the course being~ pursued. The ~h Spooner amendment " is as,. f ollows —: [Extract from fin act making appropriation for the snpport, of the Army for Itic fiscal yca r cinding Junc 30, 1tt02. approivcd 'March.2, 1901.] All military, ii, and~ jodicial lowers necessary to govern tle, Phtilippine Islands, acquired front Spaiii 1y tue trcaties coiicluiedl at Paris onl the tenth uday of JDeceimber, eighteen hutndired anld ninety-eight., andl at Wasliingtoii ii the seventhl dlax of ~%ovemtber, nineteen hutndlredl shlall, 11ntil. otherwise provided hvby iges be vested in such person andl persons and shall. be exercised in snchni manner as, the President of tile United States shall dir-ect, for tile estaldisliment of civil government and for maintainillg and protecting the illlabitants if saidl islands inl the free enjoyencit. of their liberty, lprolperty, andi religion: Irocided, That all fr-anchises granted undier the authority hereof shlall (coilta~ii a reservation of the righit to lalter, anliend, or repeal the same. lUntil a plermtanent grovernment shlall have lieti estabtlislhed inl said archipielago full rejiorts sliall beiade toConrress oi rbefore the first dlay, of eachreuasein of all legislative acts anai proceeilillgss of tihe temiporary governmllent iilstitultel unaier tile provisions, hereof; and full reprt~s of tile acts andi(l tliiiis of said governmnent, and as to the condition of tile, archipelago anti of its people, shiall be niadle to the President, includinig allI informtation which niav be usefnfl to the Congress in lprovidling- for a niore perllianenlt goverlnlemit: Providcd, That no sale or lease, or other disposition of tile public, landts or the timber thereon or tile Iraiiai11l rights therein shlall be inade: And ptrovidcd furtlwcc, Tilat no franchise shall be granted whlich is not approved by the President (of the United States amndl is mnot, inl his judgmilenlt, clearly necessary for tile imimuediate grovernmnent, of tile islands and ini(lisJpenmlsalle for the interest of tile people thereof, and which can not, without great puhlicl miti'shief, lbe postpoietl Unitil tile establisAilient, of lperi-nanelt, civil. government; amnd all suchl franchises shlall termilimate one, year after thle establishlmnent of such lpermlanent c-ivil govermnmemnt. In enacting this legislation Congress had recourse to the war powers of the nation. During- tile civil war, Congress frequently exercised the war powers. Reference has already been made to the action of Congress in regulating trade with the territory of rebellious States during that xvar. Attention is flow directed to the action of Congress in the exercise of the war powers of the nation after the war had ceased and official proclamation thereof had been made. As regards public matters, there were two proclamations made by tbe President declaring that the war had closed-one, issued April 2, 234 1866 (14 Stat. L., 811), embracing all the late rebellious States excepting Texas; and the other, issued August 20, 1866 (14 Stat. L., 814), embracing Texas. The Executive undertook to place the States which had engaged in the rebellion on a footing of equality with the other States of the Union. Congress antagonized this position and passed what are known as the "reconstruction acts" (14 Stat. L., 428; 15 Stat. L., 14). These acts provided for military government possessing sovereign powers to he exercised by martial rule in the several States mentioned. For this purpose said act required: That said relbel States shall be divided into military districts and made subject to the military authority of the United States. (14 Stat. L., 428.) The powers given to the district commanders were as follows (sec. 3, chap. 30, 14 Stat L.. 42S): SEC.. 3i. ld be it. frthler enacted, That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace, and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or, when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military commissions or trilunals for that purpose, and all interference under color of State authority with the exercise of mllilitarv authority under this act shall be null and void. The reason for such government was declared by the preamble, as follows: Whereas no legal State governments or adequate protection for life or property exist in the rebel States of [naming them], and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be established. The Supreme Court refused to interfere with the enforcement of said reconstruction acts or the exercise of the authority conferred thereby. (State of Mississippi r. Johnson, 4 Wall., 475; State of Georgia?. Stanton, 6 Wall., 50; Handlin q?. WVickliffe, 12 Wall., 174; White v. H-art, 13 Wall., 646.) The court held that this legislation was political in character and therefore outside of the jurisdiction of the judicial department; that in creating such legislation Congress exercised certain of the sovereign powers of the nation which exist, but are reserved to the people by the Constitution. No one ever claimed that the government created by this legislation was that provided for by the Constitution of the United States for the States of the Union. It found its legal justification in being an exercise of the inherent right of national sovereignty to adequately deal with a national emergency. The situation then existing is thus described by Birkhimer: But it was also true that the civil governments in the late insurrectionary States were inimical to the Union; that society there was in a dangerously disordered con 235 dition; that deep-seate(l enmity was at this period entertained liy the aleadinfg peoplle toward I il)ortanit prilicilples of g(,vernmental 1,olicy w.hlich those wh-( had saved thle Union itd( resolved- should )he inlcorporated into thel Constitution. (A ilcl (dment XIV.) Techlnically it might te ternlled "timle of pleace," but in reality it was far different, as tllat phrase is generlllly und(erstood. (Military G(overnment and MIartial Law-, Ed. I-, 3X88. ) In Texas. the mllilitary governnlent installed under the recolstruction acts colltinued until April.;. 1870. l'rior to tile passage of the reconstruction tacts in 1867. the peo)ple of Texas called a constittutional convention, which convelled ol Felbrutry 7. 18t;6, and so amended the constitution of the State as to meet tlle chagl' ed condition of atffairs brought a:}out })by the resuclt of the war atd tllhe folurteenlthl amendmetll to the Constitution of thle Ulnitel States. These amendlllents were ratified by the people. All officers provided for by thle State constitution were elected, and entered uponl the discharge of theil respective duties. The legislature nlet and passed laws, and the State cgovernmenlt was again adlministered b, officeris holdino uindler' thel( ternis of the State constitution: all the courts were held b)y- judge.s elected as that constitution 1)prescribed(. anld county and municipal officers, selected in the same m111nn11111'er, entere upon the disc'harge of their duties. But the reconstruction act of Malrch 2, 18S7, t declared thaLt no legal State goverInmentt existed inl Texas. (dl p)rovided further forI tile milita'ry gove rinment of said State. The officers elected llnder the Stater constitution were removed fronlloflicc and others lappointed in their places. Amongr thenm the g~overnoi' of the State, elected under tlhe State (onstitution 'as amlended in 1S!;6. was displaced. alll a provisional governlor was appointed anld held the office until September 30). 18!;9, when he resigned, and from that timne until January 8, 1870, the executive duties were performed i)y ani adjutant of the general in (command, placed in charge of civil affairs. On April 16t, 1871, by) Genleral Orders, No. 74, the military colnmmnder declared the Stfate had resullmmle practical lrelations to the General Government, and all the authority conferred upon him by the reconstruction laws was remlitted to the civil authorities. Speaking of the powers exercised,by the officer in comnllind of Texas under the reconstructltion acts, the supreme court of Texas say: In Texas this officer exercised powers legislative and executive, if not judicial. (Daniel r. Hlutcheson, 86 Texas, 57.) In the samle case the court say: That the State was governed bly military law, even though its own laws may to some extent have been recognize(d and administered, must be considered an established fact. The power of the United States Government to impose such a rule upon the State must be recognized as fully, under the facts existing, as though Texas had theretofore been an independent sovereignty, having no relation to the United States than that usually sustained by one independent nation to another. 236( Civil war had existedl of lmagnitud(le sel(o) excee(ledl, resulting ill the overthrow by force of arms of tile cause thle State had espoused, and the occupation of her territory 13' a }hstile arlliv. This o(clIl)allcy was contillued, and under the laws of war furnished gr(ound for the establisllnellt of mllilitary law. (860 Texas, 00.) In another case. the supl)reme court of Texas, in speaking of the recoistruction acts, say: The National legislature used(l its legitimate lpowers wvitli muoderatiom and malgnanimity, emleav{ored to encotiraige tlhe formation o)f relpublican goverlmments in these States al1( bring thIe peolple back to a due appreciation of the law aml of thle li)erty whilch is secure(l to the free enjoymellt of every citizen under tlhe Constitutionl. (33 Texas, 570.) The character of the insurrection in tlhe Philip)pines, the 1)Urposes of the itlsurgents, and the Ielamls b)y wNhich the\y endeavor to accomnplish them, arec well described in the address of Hon. Elihu Root, delivered at Cantoni, Ohio, October 24, 1900. In that (address Sc retarv Root said: io del l'ilar, Aguinal(lo's lluost active general, was the lmost. notorious bandit in the l'hilitppincs. Tle orders for a comlllbined attack anmid rising within the city of Manila on tlhe 15thl of February, ten (lays after the Senate confirme(l the treaty, contained these (lirecti(ons: First. You will so dispose tlhat at (8 o'clock at night the indivi(luals of the territorial militia, at your or(ler, will be found united in all tlhe streets of San Pedlro, armed with their b)olos and(l revolvers, and guns andl ammunition, if convenient. Second. I'hilippine families only will be resl)ected; tlhey should not be molested, but all other individuals of wlatever race they lmay be will be extermlinated without any compassion, after tlhe extermination of the army of occupation. That the intaligntnt spirit prompting this ltmurderous conspl)iracy is still potent with the insurgents is shown by the recent assassination of the oflicers and enlisted men who constituted the garrison att Samalr. So loig as this spirit shall pronmpt tny considerable 11num1111ber of insurgents to contitsue the insurrection, it is idle to say that the United States is not called utpon to maintain its authority in said islands }by force of arms; and so long as the United States is called upon to rely upon the military branch of tihis (GovCrnmient to maintain its authority in the IPhilippine Islands, just so long the territory of the archipelago will be hostile. The question which presents itself to the executive discretion is, what woutld be the consequence if the military forces were withdrawn'? It is useless to say that territory in which active military engagenments are prevented by the presence of superior mnilitary force, subject to the direction of one of the combatants, is thereby changed from hostile to peaceable. In order to create and maintain conditions under which trade with the archipelago was possible, the United States, during the year ending June 30, 1901, stationed troops at nearly five hundred points in the islands. A list of the places so garrisoned and a summary of the prin 237 cipal events connected with the mlilitary operations in the Philippines fromll Sepltelliler 1, 1 00.* to June 80, 19)1, is herewith tran)slmitted( as Appendix IH. V. -TIHE AUlTIOI'ITY OF THE 'PHILIIPPINE GOVERINMENT TO IMPOSE EXPORI'()T TA'XES (N THE, P'ODII 'TS (OF THE ISLAN)S, IF IT BE CO(NCEI)EI) THAT THlE TEIlITOR)Y HIAS CEFASII) TO BE HOISTILE. W\ hen the Cons(titution)al Convention in 17. 7 und(lert(Ok to determini1e the proper ag(ency of gov-ernmlent to exercise tile authllority to illl)(ose duties oil imports anI(l exports, a co)nlllict of interests inllel(diately prodtuced a contrloversy. Utlnder thle (Confed:eration tlhe individutll Statets exercised this authoritv in suclh mlLannelr as the interests of tlhe State required or tlhe le(gislative (discretion determined(. Tlls plan not o1ily occa.sionel great dissa:tisfactioln to tileL State(s not suppllied withl,o(l ltgo hal)os, but also deprived tl(e National Te'1eatsuvr! of the most (lesirable means of securing,- revenues for the us(' of t le General G(overninent. The eflort to confer this authority o the en11 -eral (Glover(mllllet Cmet resistance fromil tlhe States bCenefite(l.b tile svsteli prevailing under the conifederation an(d resulte(d in a c{omlromoise. (5 5Madison's Papers. 486: -2 Elliotts I)ebates, 192). 19., 44-3, 444; 3 Elliott's I)e})bates, 24,S; 4-d Federalist.) The grant of thle desiIred autllority to thte (eneral (G\ lvernnet w\as provided lby Article I, section S, para,gra)ph 1, as t'ollows: Tlie Congress shall ihave power to lay an1(l collect taxes, duties, impllsts, 1aUd excises, * * * but all duties, impoosts, ali excises slhall be unifori tlrou(gliout the 1. itedl States. The riight of the States to exercise the same authority was not surrendered, but was imade dependent, ullon tlhe consent of Congress. Article I, section 10, paraograph 2, providles as follows: No State shall, without tlie consent of C('ongress, lay any illmposts or duties on imports or exports, excelt -what may le al)solutely necessary for executing its ins)ection laws; and tle net pro(duce of all dlties andl impllsts laid by a11n State on illports or exports shall be for tle use of tlhe Treasury (f tlie lnited States; and all such laws shall he subject to the revision ad(l co(ntrol of tihe Congress. Fromll these two )rovisions it appears that the framers of the Constitution, while they desired to secure for the Federal (overnment all the duties imposed on foreign comlmerce, b)elieved thatt a State wliich, for reiasons of domnestic policy, desired to tax such commllerce Imore heavily than (ongress did, shoul he permitted to do so, provided Congress assented thereto and the amounts realized were paid into the National Tlreasury. For many yearsi after tle close of the war for independence the mlost important pub:lic (question was that of lmaking provision for the payment of the public debt incurred during that war. It would be remark 238 ablle, indeed, if the fralmers of the Constitution had entirely ignored or positively andi entirely renounced the right to levy duties on exports. I think these provisions of the Constitution contenplpate that the. Federal (Giovernnient wtas to realize revenue from duties levied oil exports,:ut that said duties were to be prescribled b)y the States. That is to say, aIs to ctj)wt,, the itndividual States retainlled the atutlhority to fix the dtlties, as that authority had been exercised unIder the Confederation, changed ill two inmpolrtant particulars, tlhe State niust secure the pernlission of (Conlgress for such exercise, and the amotunt realized must le paid into the Natiollal Treasu ry. The reatsonl for p~erlmitting the indiividual States to exercise this auttho(ritv is obviouls. At the time the Constitution was beinlg framlled there were no articles of export produced g.enerally throutghout the 1iiion. Tile glreat staplles of the South were iiot 1producedl in any consideral~le lluantity in the North, and the reverse was tire. Ill view of this variety in the production of exports it was ilmpossible, in levying ant export ditty, to select articles which would secure andl plreserve the equality of tile burden of taxation:anmong the individual States. The principal articles of export at that tiilie were cotton and grailn. Tle burdenll of aln export tax onil cotton woulid b oe byor y the South andl the burdcen of an export tax oil grai':ill wold be borne y the Northl. If the North happened to control inll ('ogress, it might tax thce staples of the South; if thile Soutlh were ill power, it Illight place aul export dluty oil the 1)roducts of the Nort'll. It was necessary also to consider that the place of export nmight he a seaport in a State wlhich wolldl levy an export tax oil articles not produced inl that State or locality. These condtiitions are miet tand possil~le injustice anld abultse gularded against by the provisions of the Constittution above quoted, and thereby was preserved the important right to tax both the incomling and outgoing commerce of tilhe territory subject to the jurisdiction of the new government then about to be established. If the framers of the Constitution intendedl that instr-ument,,hould prevent the national authority front metfing a national emergency by providing regulations for, or placinog restrictions upon, the outgoing coiimmuerce of the national territory, it is singular that,Jefferson, the distinguished expounder and defender of the Constitutio n, and Madison, whose work duringi the convention and afterwards won him the name ' Father of the Constitution," should have secured the enactment and enforced the provisions of the statutes ktnown as the " Embargo Laws." Numerous regulations by Congress of the export trade which are cap'able of uniform application and resulting burdens throughout the United States have Ibeen sustained by the United States Supreme Court. (Pace vc. Burgess, 92 U. S., 372; Turpin r,. Burgess, 117' U. S., 504; Brown, v. Houston, 114 U. S., (122; Woodiruff. Parham, 8 Wall., 123; Cooley c. Board of Wardens, 12 How., 299.) 239 Under this doctrine., it follows that if the Philippine Archipelago were a State of the Union, such State, with the peruuissioii of Congress, could impose an export, tax. It is nowv estatblished that in territory sub~ject to the sovereignty and possession of the Uniited States, hut outside the territorial linmits of a State of the Union, the national authoritv mav exercise, the powers, of 1)0th Fedleral and State Goven-0-1 men ts. The Unitedl States, while they hold counitry as a terrintory-, have -Ill The p)o~ver's of both national anji mnunicip~al government. (Shivelyv. Blowflh, 1,52 1'. S.,1, syllahus-. At present the national authority of the~ United States in thle Philippines is exercised iw) the execuitive departmient of the Feder-al G~OVermient, byN and with the, assent of Cong-ress. an(d confirmed iw the Coilgressional entactment known as the Spooner. amnendument. A~rticle I. section 9, paragr1aph 5, of the Constitution is as follows: -No tax or (dItit shall be laid on articles exported fromt any State. The article in which this pr-ovision (appears is t he One wher-ein-are set forth the powers conferredl upon Congrress and~l thle limitations- thereon. Said provision is, in] hariiiony v with the, doctr-ine that the authority to lay (dities onl exports was reserved to the States. IlThat the inhibition (loes not limit the autthor-itv of C(Migre11~ss weni it shiall. untlertake to legislate for, the P~hilippines is appaent, 'Si we thle prohilbition directly refer~s andl is confinedl to thle export's ftrom atny State." The limitation is imfimposed on the author-ity )f Congr,1ess to regulate the commerce of a State and can not })e considered a limitation onl the power given by Article -111I, secItion 3, pfartag-raph2 — The Congress shall have power to (lispos,'e of an11d mae lls( -I nieedfull rulles and regullations, respecting the territory or o)their property of the Uniitedi 'States. If it shall bew insisted or- (letermuined that after thle exchange, of raIt ifications of the tr-eaty of pemlce with Spain (1898) the territor-y of time Philippine Islands ceased to be for-eign to the territory of thme Uniated States, it f ollows that the customs duties called ''export taxes " can. not be held to be in violation of the provisions of the Constitution prohib-iting Congre:ss fromt imposingr t axes on /o/8 The Supr-eme Court of the United States hia:- held in a numyber- of cases that the word '' export," wher-ever us.-ed in the Constitution in connection with commerce, refers exclusivselyv to commerce with fore-_ign. territory (WNoodruff 'c. Parhlaml 8 Wall., 123, 136; Brownm v. Houston, 114 U. S., 62-2; Coe v. Errol, 116 U. 5., 517; rTurpin v. Burgess, 117 U. 5.,1 504; Pittsbuirg Coal Co. v. Louisiana,16.S, 590, 600.) In the case last cited (156' U.5, 60) the court say: The termns ''implorts'' and l exp~orts'' app)ly only to articles imported fromt foreign countries or exportedi to thlem. The inhibition imlposedl is the laying of dluties on imports from foreign countries, and not on. such as caine from one State to aniother. 240 The Constitution does not say no tax or duty shall be laid on articles exported from any territory throughout the United States, lnt confines the lprohibition to exports from a: Sf(,f. Thle laltat'ng e is explicit and aldmits of lit one construction. The lanliuaoe is not as broad as is used ill the requirement that "iduties. inlposts, antd excises shalll be uniforn throughout the United States." The restrictioi is limited, territorially. to territory within the bounldaries of:any State of the Union. It (c:n not, in canl(lor. be c(,elaimed that tie l'hilippie atrchipeltagoo is a State of the Unions: yet. unless it is. nothing is to be derived from said provision of the Colnstitutionl, \eve if it te Ladmlitted that tile territory of the arclhipelagi o is nowh incorporated into the lUnited States:ti( l tle territorial bounldaries of the United States extelded to include it. I I) D lowns. Unlitedl States (182 ['. S.), Mrl.,Justice Brown says: In I(eterliniling thle mleanling of thIe words of Article 1, section (6, "uniform tliroughout thle Unitedl States," we are blonii to consider n lot oilv tile l}rovisions forbiddingl preference beiilg givenl to tile lports of )one State over those of another (to which attention ]las alread(y been called), llt tle otlier clau1ses (eclaring tliat lno tax shall l)e laid on articles e xporte(l from any State, anl that no State shall, without the consent of Coniress, lay any imiposts or duties u pon imports or exports, nor aniv lutv on tonnage. Tlie ob(ject of all these was to lprotect the States which united in forming tlie C(ostitution from discrimlinations 1'y Congress which would operate unfairly or injuriotusly upon some States and not equally upon others. Tlie opinion of MIr. Justice White in Knhowleton '. Moore (178 U. S., 41) contains an elaborate historical rev iewi of thle proceedings in the convention which resulted( ill the adoption of these different clauses and their arrangement, and lie there comes to the conclusion ()p. 105) that "although thle provision as to preference between ports and that regardingl uniformnity of duIties, inposts, amnl excises were one in purpose, one in their adoptio,," thev were originally placed together and " became separate only in arranging the Constitution for the purpose of style." Thus construed together the purpose is irresistible that the words "throughout the United States" are indistinguishable from the words "among or between the several States," and that these prohibitions were intended to apply only to commerce between ports of the several States as they then existed or should thereafter be admitted to the Union. If it is insisted that the territory of the Philippine Islands has ceased to be hostile, and that under the decisions of the Supreme Court in the insular cases the executive department is without authority to impose duties of any kind on articles passing between that territory and tlie United States, but that authority to impose any duties on such articles is vested in the legislative department of this Government, Such contention is to be answered by calling attention to the provision of the "Spooner amendment," as follows: All military, civil, and judicial powers necessary to govern the Philippine Islands, ac(quired from Spain by the treaty concluded at Paris on the tenth day of December, eighteen hlundred and ninety-eight, and at Washington on tlie seventh day of November, nineteen hundred, shall, until otherwise provided by Congress, be vested 241 in such person and persons and shall l)e exercised in suchl manner as the Presi(lent of tile United States shall direct, for the establishlment of civil government and for maintainlilg andl protectting the inhabitants of said islands in the free enjoymlent of their lilerty, I)roI)erty, and religion. Such taxes, duties, imlposts. and excises as Congress is at lil)erty to enforce at the forts il the l'hlilip)l)iles the lp)reellt goovernmllel t of the islalnds lmay enforce therein. The decisionll of the Supreme o (oullt in the ilisuil'ar clasls (leterminei tliat inl le,(islating for l'orto Ric-o or otiller territoryl outsid(l of the territorial b(l)ond(lries of a State of the Urnion, the legislative aulthlority is not )botiud by tlhe limitations of thle Co:nstitution relating to tle exercise of tile l(egislative po(\er over territory withiin a State of the linion." VI. TIlE RI(GHIT OF THE UNITED) STATES TO AlDOPT AN1) ENF(ORCE 1REGULATIONS FOR TRAIE WITH TIHE PILIPPINE ISLANDS IS NOT CONTROLLEI) BY TIlE T,IMITATIONS OF THlE CONSTITU'TION IRESPElCTING TilHE REG(ULATIONS OF TRAI)E WITII TIlE STATES OF THE UNION. Reference hals been made herein)before to tlhe )roposition that the ordinances and institutions created by) the mlilitlar government in territory oc(cupied by the military forces of tie United States, continued a NOE: o.- Silnce thle foregroilng was 1prepare(t ant suimitted( tlie Supiremle Court of thle Unitcl States anlnounced their determination of tlhe Fourtcen Diamond RIin'gs case and allo of Doolev r. Unite(l States. In d(elivering the opinion of the c(irt ill the l)ilamol l l-Rin.gs ase Mr. Chlief Justice Fuller says' "1I I)(owns '. Bidwell tlie conclusion of tile mlajoritv of tlhe clirt was tlat an act of Con-ress levying lduties on goo(ls iml)orte(l from IPort) Rico into New York not ill (conformlitv ith tile provisions of thle Constitution in respect to tile imposition of duties, imposts, and excises was valid, * *" altlhughl l1b thl/e cession Iorto Rico ceased to he a foreign country an(l bectame a Terlritorx of tlle United States and domestic, yet tliat it was merely 'appurtenant' territory an(l 'iot a part of tlle United States within tile revenue clauses of tlie Constitutioll.' "This view placedl the territory, thoulgh not foreign, ouitside of tile restrictions applicable to interstate commllernce, andI treated tlle po)wer of (Clress, when aflirmatively exercised over a territory, situated as supl)i)sel, as micontrolled by tlie provisions of the Constitution il rIesp)ect of national taxation." In delivering the opinion (of the court in D)oolev r. lUnited States (filedl I)ecembler 2, 1901), \Mr. Justice Brown says: It follows, andl is the logical sequence (of tile case of Woo(lruff r. Parhain, tlat the word "export" should be given a correlative meaning a(l applied only to goods exported to a foreign colutry. (Muller '. Bald in, L. R., 9,,. B., 457.) If, then, Porto Rico be no longer a foreign country under the I)ingley act, as was leld by a majority of this couirt in I)e Limai v. Bidwell (182 U. S., 1) and Dooley r. United States (182 U. S., 222), we find it impossille to say that goods carried from New York to Porto Rico can be considered as "exported" from New York within the meaning of'that clause of the Constitution. If they are neither exports nor imports, they are still liable to be taxed by Congress under the ample and comprehensive authority conferred by the Constitution "to lay and collect taxes, duties, imposts, and excises." (Art. I, sec. 8.) 1394-03- 16 242 after the treaty of peace had permanently attached the sovereignty of the United States to said territolry, until modified or repealed )by the action of the legislative department of the United States Gove rnlIlent or by somne legislative body exercising authority derived from ConIn Dooley- '. 1United States (182 IT S., 222), speakin of the situation in Porto Rico after the exchange (of raltifications of the treaty with Spain, Mr. Justice Brown says: AWe have no tloubt, however-, that, from tle necessities of the case, the right to administer the governmlent of I'orto Rlico continued in the military commnand(ler after the ratificationl -)f the treaty and(I until further action b1y Congress. In matters relating to internal or domlestic aff airs the authority of such government, so continuled, would be the same as theretofore, and the governtill autthority justified il dlelling with said affairs as necessity required and prudence dictated, restrained onlll b- the established usages of nations. The decision of the majority of the court il I)ooley,i. United State's calls attention to tihe doctrine that, in matters not internal or doniestic, but involvinJg the relations, after the treaty was ratified, between the territory alnd ilha.litan-ts of Porto Rico and the Federal (1overnlment of the UInited States, tlhe insular governmllellt of Porto Rtico'was nlot autllorized to exeicise a free hand. The decisioll in the D)oolev case is not of controlling force over the proposition unlder consideration. The tquestionI in the Dooley case was whether or not the territory of Porto Rico was foi,ciqp. The question involved- in the proposition under consideration is whether olr not the territory of the Philippines is hostdie. The treaty of Paris, in dealinlg Nwith the 111attetr of sovereignty over the territorI ceded by tllhat illstrumient, went n1 flurther than to attach the soelreignty of the United States to said islands. Whether said treaty is considered las the inception of the lights of the, United States or as the confirmation of rights Laclquired by conq(uest, the fact remains that the treaty pro-isions, as to sovereignty, stop at the point where they accomplish the result of attaching the sovereignty of the United States to the islands. The treaty itself, as to sovereignty, atcconlplishes no other or different result than woulld be accomplished by an original discovery of all island, aind the takilng possession thereof in the name of the United States. The imlportance of bearing in mind the limitations of the work performed }by the treaty arises from the fact thllt the treaty is poptularly believed to have accomplished manay things which it did not do. One important thing which the treaty did Iot ldo,?was to fix the,, i';lations whAich the ceded islanzds and thke inhabitabnts thereof were to satstani to the Federal Gocern2,ent of thie Unfited States. The reason for not fixing said relations by treaty stipulations is that 243 the 'authority to fix such relations is not possessed by, the treaty-making power of the~ Government of the Unitedl States. The authority so to do is vested in the Congress. The question arose tat the time, the Louisiana 1Purchase treaty Was considered byCongress. Thjat t iaty-conitaltine(tl thefollowriing proiion7111s: A RTIC LE 111. The inhabitants of the ceded tei'ritorv shall be incorl oatedl in the Union of the States andl admitted as sooU a~s possil lie, accornlilig to the( princij)Is ef thle Fedleral Constitution, to the enjoyment of all the rights, advantage's, andi immiiunities of citizens4 of the United States; and in the. ieantime they s —hall be maintained and proteetedI in the free enjoyment of their liberty, p~roperty, anJl time religion whi1ch they, profess. 'ARTRcILE VII. _As it is rec~iprocally adlvanftageons to the commerce of France and1 the United States to encourage tile conmmnni1micatiomi of 1)oth nations for a limited timie, in the countery cededl by time lpresent treaty ontil genieral arrangements relative to~ the commerce of both nationsl may b~e agreedl onl, it ha~s bleen agreedl betweenl the contracthiig lparties that thme French ships: co.)ining (directlyv fromi France 01r anyv of her colonies, loaded only with time produce aind immanfactnres of France or her said colonies, and tile, ships of Spainj co~IIjiing(irectlyI v romn,a or any of her colonies, loaded only wvith prodluce or mmalmmnfactuires of SIpainl or hiem em 101i1(5, shall be admitted (lurliang the space of twelve years ini tile port (If -New Orleanis, anid in all other legal ports of entry within thle ceded territory, iii the 5dIOCl mmannmer as~ the ships of the United St'ates cominin directly fromim France om' S~ain, m' anr a of timeiml' colonlies', withjout being sublject to any other om' greater dunty on mmerchmamillise, (.r' otheir (or greatem' tonnage1(, thani that. paid iby the ('itizenis of the T., nited States~. Whemn Congre ss wvas called up.on to sul.))ly the(-. legislation necessary to carry out thle immediate requirements of the tr'eatv, P~residenmt Je'fferson wavts atssailed from all 'sides for having. "Ittemlptedl to uisurip thle, xvell l'eeogmnizel poxVer's, of Conlgres~s by cons'enting to these. pr-ovisions. (Annals of Congress, 180:3, pp. 432 et seq.) The question (again airose upon thle a('quisitionl of UlplpeL California and New Mexico. It will he L'e~calledl that soon after the trea-tv of peace with Mexico Wa-Ls ratifiedl time peojl~e of U'pper California and New Me\I(xico attempted to settle foi' themselves the relations whichi they and the territory they inhabited \vere to sustain to the Federal G-overnm11en1t of the Unitedl States, and proceedled to- orgamize a governmnent for the territory, and elected Senators andl Representatives in Cong)ress. These Senators and Representatives calines to Washington and claimed recognition. by the resp~ective bodies of Congress;, whereupon the desired recognition wvas i'efused. Congress wvent further, amid caused an investigation ars to whether President Polk had instio'ated the unwarranted action of the people of the newly acquired territou'y. It will be remembered, that after the successes of the Union armies in the third campaign of the civil war, President Lincoln is-sued a proclamation inviting the people living in the rebellious districts to form loyal gov~ernments, under' certain conditions prescribed by the proclamation. (13 Stat. L., 738.) ~244 Pursuanit t~o said proclamattion, govwernmnents were, organized in Louisianall anid Arkant1SatS III 1864, and in Tennessee in ISO3. Congress refuised to re~cognize these govermnments, and Senators anid IRepresentativyes electe(I theretunder wvere len ie(1 secats. inl the respective0 HonIses.; Althoug-h the orgranization of these o'overnmients wasl a war- mieasure. intenided to further weaken the relbell ioni, the attempt. of the Exeeutive to dietermninie and adjust the relationis, exist ingo tanl prospective. sustaiied by the territory and inihabitanits of the relbeltious districts t~o the lFederal ( 10overnm1lent, caused tlhe first decided anitagonismi betw-een the Presidenit and Clongress growinig out of the conduclt of the war. The inisistence of l)resident Johnsoni upon the righlt of the, Executive to te ii ieeiisexeircise this authority culminatedi prcedg by Conigress for his imipeacWhment and imninutabl v (letermnined that iunder' our form of governmnent the power to fix anld deternihne the relationis to the Federal Governmnent to be,sustaine(1 1v territory -and ii nhabitants, not mnclude(1 withinl the geographical boundaries of a State of the Union, does not Welong. to the executive departmnent, but rests ini the sovereig-n people, to be exercised by thiriprsittvei tewo oss of Conig ress. Trhis is the, principle upon which rests the (lecisionl of the Supremie Court of the United States in Flemingm ~-. Pagre (9 1ow., C(9-)3), wherein the (ourit s.ays (6304-4116): By tlhe laws and usages o)f nations, conquest. is a vahi( title while the victor maintains the exclusive possession of the conq)neredl country. * *As regarded by all other nations, Tamnpico was a part of the U..nitedl States and lbelongedl to them as exclnsively as t-he territory inclnudedl in our estabilished h~onudaries4, lblt. yet it. was not a atof the, Union. -Nor does the law declarinr the warir pya uhrt to the Presidlent to enlarge the limits of the, 1..nited ',States ly suhjngating the, eneiny's cunitr~y. ***His duty andl his powver are purely nmilitarv. As con-mander in chief li*~ e mmmav invade the hostile country land suhject. it to the sovereignty alld authority of the U nited States. Pitt his 5 (owinsts dlo niot eooI~rqe the bomnd-aries of thin Uinois nor1 eten)d the ()peraoboe o[ ooir in~sttitittons (nd "ioio beyood the limits before assyoeipd theo by the lef/isl~til'e powCer. The boundaries of the United States as they existed when war was declared against Mexico were not extended by the conquest; nor could they he regulated lbv the varyinr, incidents of war and he enlarged or (litniniisliedl as, the armies on either side advanced (.r retreateil. They remained unchanged. AndI every place which was out of the limits of the United States as previously established hy Congress was still foreign. The theory that the President and Senate, by an exercise of the, treaty -making power, cani determine and establish the relations to the, Federal Government of the United States to be sustained by foreign territory and inhabitants, upon the territory becoming subject t o th e sovereignty of the United States, is based upon the doctrine that the President and Senate possess the powers under this Republic which are possessed by kings and kings' councils under amonarchy. It over 245 turns and dlestroys the pi-rinciple, upon which this Rep!ul)lie is founmded 1v (lenyini" t~hat sovereignty is vested in the people. 1 inder all Governments addlitions to the realni, the~ p)rkivege' of participating in the Government, and the relations to, be su ~taiiedl to the prevailing sovereigntv are, matters to) b e deterum11i iedl 1v the sovereipn1. Inth Untd-ae h oereign is thle pol)Npe, not the President or the Senate. In Europe the kiiig is the sovereiomi aind sovcereignty iV- vested in h ii, lie can t~herefore (10 as lie likes inl smielh matters or. as, his m1iiitarv forces enablie him to (10. A. king ca-.n extend his king-doml to the four corners of the earth if lie has.- the reqluisite. militarv force. I aying conquieredl a province, hie canl HiCorporate it into his kingdom or not as hie sees lit; andi aliomv the, coii(juer-ed inihabitaiits to participate in his gover nment as imuch or little as lie desires; and (leterimine the status of the territory anid its inhabitants llndei- his sovereigrnty, including the relations to ibe sustained byN- such territory to the State of which it has become a dependency; but this g-reat power of the sovereign is vested undler ouir form of governmuent in the people and not in the Chief Excecitive or the Commander in Chief of the Ar~nv and Navy. To permit the exercise of this powerL by the lPresident is to coiicede to hini the highest au-thority known to kings. To permit thle exercise of this power by a niilitalry officer of however high (legree, is to establish '" militarism, in its worst and1 most obnoxiouis form. The most the President and Senate canl (10 by treaty -stipulations, or a military commander can do by conluest, is to give the sovereign people an opportunity to say what shall be done wvith territory and its inhabitants. The will of th'e sov7ereign people in rega rd thereto is to be declared by the legislative department of the Government-that is, Congress. 'lI Iis authority is e-slecially conferred onl C"ongress by section 3 of Article IV of the Constitution, which prov-ides that — Congress shall have powver to dispose of anid miake all iicedful ru lets and regulations respecting the territory **belonging to the U nitedl Statess. It was this diff erence between the Presidlenit of the United States and the King of England to which the Supreme Couirt of the United States referred when, in speaking of the effect of the conquest of Mexico by the United States, it said: In. the, distribution of political power b.etween thle great departments of this Goyermient there is such a wide (liff erenee between the power conferred onl the President of the United States and the authority aiid sovereignty wvhich belong to the E~nglish Crown that it would be alto-ether unsafe to reason. froni any supposed resemblance between theni, either as regyards conquest in war or in any other sub~ject where the rights and powers of the executive arm of thle (.ioverninent are brought in question. (Fleming r. Page, 9 Hlow., 618.) liavimig in mind this want of authority onl the part of the treatymaking power, the statesmen composing the Anmerican Commission 246 at Paris and the great President under whose persona1 supervision the proceedings of the peace conference were conlducted, carefully abstained froml attempting to exercise this power. The question as to the effect of the transfer of sovereignty on the nationality of the inhabitants of the islands was dealt witl in the treaty:as follows: (Art. IX): Spaliish subjects, natives of the Peninsula c* *: in case they remain in the territory, mlay preserve their allegiance to tlie (rown- of Spain by making * * * a declaration of their decision to preserve s1ucl( allegiance; in default of such declaration they shall be hleld to have renounced( it andl to have adopted the mimtionality of the territory in li'ch] the!y )atl reside. It will 1)e noted that the treaty does inot provide that the nationality adopted is that of the United States. 'The nationality of the inhabitants vwas to follow the political fortune of the territory of the island in which the individual resided, and the political status of the islands was to be determined and declared by (Congress. Said Article IX of the treaty further provided: The civil rights and l)olitical status of the native inhabitants of the territories hereby ceded to tle Ilnited States shall be determined by Congress. Wherever in said treaty it was intended to include Culha in the treaty provision, the stipulation is made with reference to "tlhe territories relinquished or ceded by Spain," but in the stipulation above quoted the provision is confined to '"the territories ceded to the United States," 'amoncg which were the Philippines. The expression "'civil rights and political status' ought not to be interpreted as though it read " civil and political rights." Political status is tlhe base on which political rights stand; the foundation on which are' erected manll privileges, benefits, and immunities, amlong which lare political rights. There is a difference between the political status of territory and the political status of the inhabitants, but the two are so closely related as to be interdependent. It is lmanifest that the Treaty of Paris (189S) contemplated and proviided that the political status of both territory and inhabitants of the islands ceded to the United States "shall be determined by Congress."' The treat-, beinlg formulated, -was sulbmitted to the President, who communicated its provisions to the Senate for advice and recommendation of the body as to whether or not the proposed treaty should be ratified by the Executive. The Senate advised that the President ratify said treaty, and thereupon the President ratified it. 1By this action the treaty-making power of the United States confirmed the provisions of said treaty that the political status of the islands and their inhabitants "shall be determined by the Congress," and to the extent of the authority possessed by the treaty-making power of this Government made such provisions the law of the land. Therefore, both by the distribution of powers under our system of government 247 and the action of the treaty-making power, it devolves upon the Congress to determine the status of these islands and their inhabitants, including the relations which they sustain to the Federal Government of the United States. The Senate did not confine itself to recommending the ratification of the treaty. In connection therewith the Senate l)ased the following resolution: Resolved by the &Senate an(l IHoase of Re1l,'eesentatie.s of the Ulolitedl fStatetc of,1,rc)icca ill Cooyress a,.ssembled(, That by the ratification of tile treaty of peace witll Spain it is not intendled to incorporate the inihabitants of the Philippine Islands into citizenship) of the Unlited States, nor is it intend(le( to Ilermlanently annex said islands as an integral part of the territory of the UJnited( States; but it is the intention of the United States to establislh oni said islanlds a goverinment suitabl'e to thle wants and con(litions of tlhe ilhalbitanlts of said islands to prepare thenlll for local self-government, anll ill due tillle to make such dislposition of said islands as will 1)est promote tile interests of tlhe citizens of the Uliited States and the inlhabitants of said island.,s. The investigation so far has proceeded on tle theory that thel so'e.reignty of the United States did not attaclh to the Philip)pizne Arlchipelago unltil thle treaty of Paris was agreed to in the conference and thereafter ratified and exchanged. In the opinion of the, writer hereof, this theory is not correct, and thle United States will 1be placed att a dlisadvantage and involved in unnlecessary complicationls hereafter if such theory is accepted. The position taken by tlhe Americtlnl Commission at Paris (1898) was that the sovereignty of the [United States attaclled to the Philipl)illes when Manila, the provincial capital, wvas occupied )by the military forces of the United States as a result of mllilitary opera'tions by- which the Spanish sovereignty in tlhe (tarchipelag'o was oertlllrovn. 'This conditiom v was a sufficient }a:sis of good title foir the UInlited States. So long as the United States continued to hold and occupy the islands neutral nations nmust recognize the United States as possessed of sovereignty thereover. As was said by the United States S'upreme Court with legard to territory subljected to nlilitary occuplation (luring the war with Mexico: It is true that when Talnpico lhad been capture(l amit thle state of Taulllalipas sulbjugated other nations -were 1)ound1 to regardt the country, while outr possessioll contillued, as the territory of the UnJite(l States and to respect it as suchl; foir 1)v the larws and usages of nations conquest is a valid title whlile tile victor mailtains the exclusive possession of tile conqucred country. * * * As regarlde( byall other nations, it was a part of tlie Unitedl States, an(l belonged to theli as exclusively as the territory includled in our established bounrlaries; })nt yet was iiot a )art of the iUnion. (Fleminig r'. Page, 13 How., 615.) At the time of the peace conference in Paris in 1898, all the rights of Spain in Porto Rico, Guam, and the Philippines had not })een obliterated. The sovereignty of Spain over these islands had been displaced and suspended, but the Spanish Government and sovereignty elsewhere had not been destroyed. The rights of the United States in said 248 islands were those of t belligerent; they arose froml possessioln nd were dependent upon the ability to mIaintain that possession. Under the doctrine of postlimiiny the sovereignty anld rights of Spain would become superior to those of the Untited States, if by any means Spain ag(iln.came into possession of any portion of said territory. The Amerlican Commission, therefore, requiired, as a condition precedent to a Ipeace, that Spain surrender this right of repossession and assume towardl the islands mentioned tlhe same position as was occuipield by the otler nations of the earth. In short, the treaty of Parlis (1898) c(,nXJficed the rights of the United States instead of c(l'(ti'nf them. If the foregoing views are correct, it woulld seem to follow that the relations of the islands, affected by the treaty, to the Federal Government of the United States, including the Constitution thereof, remained the same after the ratification of the treaty 'as they were before; that is to say, the relations are those of territory, the conquest of which has been accomplished. If it is contended that the treaty with Spain is to 1b interpreted so as to create a changed condition in the relations theretofore sustained by the territory of said islands to the Federal Government of the United States, who is competent to declare the proper interpretation? Prilmarily the controversy lies between the territory itself, and the inhalitants in their associated or collective capacity land the Federal Government of the United States. The territory and the inhabitants come to the Federal Government and say: By the treaty you alre required to assume toward us a certainl relation. The rights, privileges, and immunities of the Federal Government are involved. Its authority over said territory, considered as territory, and over the inha-bitants, considered as a people, is challenged. It seems manifest that the questions thus presented must be referred to the political branch of the Government. The judicial branch is without jurisdiction over the parties to the controversy or the subject-matter. Iet us suppose that the territory and inhabitants constituting the Territory of New Mexico were to go into court alnd insist that by the treaty of peace with MLexico the relations sustained by them to the Federal Government was that of a State of the Union. Would any court undertake to judicially determine such contention? Questions involving the relations of the Federal Governmnentf to territory and the interpretation of treaties atfecting the rights of the Federal Government are to be determine(d 1) the political lbranch; an(i that.branch having determined the questions, the determination is binding upon the courts when they are called upon to determine questions as they arise upon a claim of right asserted )by an individual or association capable of maintaining a proceeding inl court. For exallple, let us consider that a question has arisen as to our national boundaries. The determination of a question. of national boundary by the 249 political branch is bidinlg lupon tlhe judicial branch. The illterpretation of a treaty estaldisiling a boundary lmade by tlhet political branc(h is binding utpon the courts. Questions of boundalries belong to our foreign relationls, allll as such are to be dealt with by the political branch of the Governmtent. In William;s i. Suffolk Insurantce Compalny (13 Pet., 415), the court say (420): And can there lbe ay Idolut that when the executive branlch of tlhe (iovernimelt, which is charge(l withl lor foreign relatios, slall ill its corresplodellncle witli a foreign nation assume a fact in regard to the sovereignty of any isail(l or counltry, it is (( Inclusive on the judicial dteplartment? And in t}is view it is not material to ili(uire, nor is it the Iroviice of tlue ci urt to dietermineii,, whetlier the executi\v' }1e righlt or wrong. It is enougl to know tlhat i t the exercise o(f hlis cnstitutional functions lie has decidledl the questilo. Having d(1e this under the reslponsibilities which belong to him, it is ol)ligatory o0l the people anll (;overnllent of the I'nioii. If this were not thle rule, cases iigriit often arise in whiclh, o:n tile mIost imlportant questions of foreign jurisdiction, there woulll be ant irreconcilalle difference bletween the executive anl judicial dlepartlllmets. ] y (ie (If these lepartlllents a foreignl island or country 11lirlht 1( (lonsi(leredl as at peace witlh tlhe U'ited States, whilst tile other wouldl considler it il a State of war. No well-regulatel governmell t hlas ever sanctione(d a Irinlciple so, unwise altn s(l- destruc(tive (,f national characte'r. In Foster & Elaim, Neilson (2 Pet., 25.) the court say (309) (Marshall, (Ch. J.)' After these acts of sovereign power o{ver the territory izn (lislt.e, assertiig4 tlhe American construction (of the treaty by wliici tei (Governinent claims it, to Iainttain the opposite c(oinstruction ilI i ts own (I cirts would certaililv 1.Ill an nomaly il the history andl practices of nations. If those (lepartments w}hich are intrusted with tlie foreigl intercourse of tlie iation, whlich assert and maintain it1 interests against foreign powers, lhave unequiNvocally asserted its rights of dominlioni over a country of which it is in possession, an(l which it claimis Inlder a treaty; if tlie legislature has acted( on the constructioll thus asserted(, it is niot in its own colurts that this construction i:' to be denlied. A question like this respecting the brunidaries o(f nations is, as llas }been truly said, more a political than a legal question; and in it.( discussion the courts of every country must resplect tlie lpromInce(l will of thle legislature. Hadl this suit been instituted ininiedliately after the, passage of the act for extending tlue boundary of Louisiana could the Spanishl construction (of tule treaty of St. Ildefonso have been maintained? Could the plaintiff lhave insiste(l that tlhe landl dill not lie in Louisiana, but in West Florida; that tlue occu)ati(on of tlie country by tlie lUnited States was wrongful, and that his title under a Spaiiish grant iust prevail, because tlhe acts of Congress on the subject were founded on a iiisconstruction of thlie treaty'? If it be said that this statemient does not present tlie question fairly, because a pllaintiff admits the authority of tlhe court, let, tlue parties lbe changed. If the Spanish grantee had obtained pIossessioll so as to be the defeindant would a coturt of the United States maintain his title under a Spainislh grant, made subl),sequent to the acquisition of Louisiana, singly o(n thle principle that the Slpaiisih construction of tule treaty of St. Ildefonso was right, and the American construction wroIg? Such a (decision would, we think, lhave subverted tlhose prinlciples which govern the relations between the legislative and judicial delartments anill mark tlie limits of each. In United States r. Arredondo (0; Pet., 691) the court say (711): This court did not deelm the settlement of boundaries a judicial, but a political, question-that it was not its duty to lead, )ut to follow, the aotion of the other -2 S5O departments of the G3overninent; but when individual rights depended on national lboundaries, ''the judiciary is not that department of the Governmenit to which. the assertion of its- interests against foreign jiowers is confidedi, and its (Iutv commnonly is to (lecide npon individual rights accordling to those principlels which. the political departments of the nation have cstalblishe1.'' ''If the course of the nation has been alain one its (courts, wouldl hesitate to pronounice it erroneous.''' etik hn hiowcver individual. judges might construe the treatv' of St. Ildefonso, it is the prov — iuce of the, court to (onforni its diecisions to the wNill of the legislature, if that will hias, 1eenl clearly expressed.'' (2 Pet.,:307.) In (Gracia r.Lee (12 Pet.. 511) thie (Quit sav 51) flie question o)f lboundarv between the Unitedl States, and Spain was a question for the pIm itical departjnents of the G-overnment; that the legislativxe and executiv-e branches hiav-ing decided this question the courts of the Un'iited States were bound to regard the loioudary deternunedl upon by them as. the true one. -in the opinion of the, Supreme Court in the case of Jones i'. United State~s (137 UT 2 02)) wNritten by Mr. Justice Gray, the law is thus,stated: WNho is thie sov-erei-n (it'}o or (dt fac-to of a territory is not a judicial, but a political, qutestion, the determination of which by the iegislntive andi executive (lepartinents of any governme it conc hsivelv binds the judges as well as all other officers, citizens, an(1 subjects of that go emninent. This p~rincip~le hias always lbeei up~heldi by this court, and has b~een affirmned unilcr a great variety of circumstances. (Gelson r. hoyt,3 What,. 246 '324; U. S. '. Palmer, 3 Wheat., 60 h iiaPsoa Wh'leat., 52; Foster r.Neilson, 2 Pet., 233, 307, 309; Keane r. McKDoniaugh, S Pet.,:308; Garcia r. Lee, 12 Pet. 511, 520; Williamrs r. linsurance Co., 13 P~et., 415; UT. S. r.Yorba, 1 Wall., 412, 42.3, U. S. t Lvnde, 11 Wall., 632, 638.) It is equally w"ell settled in England. (The Pelicamn 1d(1w. Adm. Appemid~. I). Taylo)r r,. Barclay, 2 S-im., 213; Emolwror of Austria r% )ayv 3 IDe (Sex, F. & J., 217, 221, 23:3; Republic of Peru r i. ermvian (uimiao Co. 36 Ch. liv., 489,7 497; Republic of Peru r. D)reyfus,, 3S Ch. Div'., 356, 359.) * * * I Al,(ourt-s of justice are boun~d to take judicial. notice of the territorial extenit of tli juris(liction exercisedl by the government whose laws they admuimister, or o)f its recogniition or (leniial of the sovereignty of a foreign powNNer, as appearhing from the public acts of the legislature and executive, althouigh. those acts are miot formnally put in evidlence, nor in accor(l. with the pleadings. (U. S. r. Rey-nes, 9 Ihow., 127; Kenniett r. Chambers, 14 How., 38; Hoytr'. Russell, I1 U-I. 5S.,401, 404, 6 Sup. Ct. Rp., 881; Coffee r. Groover, 123 U. S., 1, 5 Sup. Ct. Rep., 1; Stater. Dunwell:111.1., 27;Stae r.Wager,61le., 178; Taylor r'. Barclay, anid Emperor of Akustria 'c. Iavy aloxe (citedl; 1 (Greenl. Ev., sec. 6.) In the ease of the~ James Gv. Swan (50 Fed. Rep.. 110) the court say: As, our Government is coiistituted, the President and( Congress are vested with all the responsibility and powers of the (ioverimimet for determination of questions as t~o the maintenance and extension of our national (loininiion. It is not. the province of the, couirts to lpart~icipate in them discussioin or (lecisiomn of these questions, for they arc of a political nature and iot. jtid~icial. The Congress amid the JPresidlent hiaving1 assumiedl jurisdiction and soivereignty, and having made (declarationis amid assertions as, to the extent of our national authority amid domiiiion above indlicated,*** all thie lpeople and courts are bound by suchl gov-ernmental acts, (leclarations, and assert~ions,*** and time responsibility of imaintainiing, the national authority within the boundaries s-o fixed, andl to the extent asserted by the executive and leg,islative authority against foreigni governments, rests with th executiv-e and legislative branches of the Government. 251 In Fleming' et al. r. P'agre the court say (HIo,"., CfU(3): But the boundaries of the United States, as they existed when war was declared against Mexico, were not extend-edI by the (oniqiiest, nor coufld they be regulated by the varying incidents of war and he enlarged or diminished as the armies on either Sidle advanced or retreated. Thev' remainedl unchangedl. And every place, which was out of the, limits of the Unlited EStates, o(s po'rioltsly (.stolblisho'd 1by the politica~l authorities of the (Gortrmoeot, wos' st4ill foreifjo. If the, views hereinheforc expressedl are- corr-ect. it follow~ls that1. The treaty-making) power of the United States is without authority to establish the relations to the, Federal Grovernment of the LUnited States to be stustainel 1)v territory aid inhabitants aequiredl by conquest. 2. The treaty-making) power in the inistance. of the~ late treaty with Spain did not attempt to fix said relations, buti exp~ressly 1)rOVided that such relationis,should be determinied by- Conig-ress.,3. If ainy question exists as to the relations now sustained by the territory of the Philippine Islands to the Federal Grovernment of the 1Unitedl States, such question, since. it. iivolves the riglits, of the Federal (iov-eriini1ent, must lhe resolved by tim. political branch and is not subject to the judlicial br-anch. 4. The territory of t he IPhilippine I. land-s lbehig hostile by reason of the insurrections ther-ein. stich territorv anid its iinhab itants are thereby brought within tim groverninhg auithor-ity of the war powerls of the nation, the exercise. of which said poxweis is 10regulated by the laws of wNar an11d not b)y constitutional provisions, legislative eniactmients. or treaty stipulations intenrler to provide for- the. conditionls of peace. WVAR DE-PARTMEN-T T-181osioyjton,1 Ja ry2,1902. Sin: R~eferring to your several communications in reslpect of a number of suits instituted in the Federal courts of the, United States to recover amounts paid to the government of the Philippine Islands as (duties on imports into and exports fromt the territory of said islandIs, p~eriiit ine to call your attention to the inclosed copy of a report by the law offhcer, D ivision of Inrsular Affair~s, on "The right of the govern — inent of the IPhilippine Islands, instituted by the Prcsidlent of the United States, to regulate commercial intercourse with the archipelago, aii(l, as a.n incident to such regulationi, to impose import andl exlport duties.'' This report sets forth the viewAs and reasons therefor pursuant to which said iimilort and exp~ort (luties w-ere collected.i The questions as to time and( amount of p)aymenet, character of goodIs, lplace of origin, etc., involvedl iii said cases have been referred to time local authorities in the 1Philippines for information in regard thereto. Upon receipt thereof you will be murther a(lvisedl. Very resp~ectfully, Eii'Roor,1 The ATTmoRNEY-(GENF:RAL. S~ecrtar?/ of liar. A IP ENI)IX A. [Sect/ionl, Chapter 3, 12 ';;el ta.tes Statuties at Large. page '257, act f July 13, 18t o 1.] SEC. 5. A d1)r (t it further e(wc(ted, That whellever the President, in pursuancte of the provisions of the second section otf tle act entitled "A'' act to provide for calling forth the militia to execute the laws of the Union, suppl)ress insurrectioms, and repel invasions, and to replal the act now ill force for that puri)se,'" aIproved Fehruary twenty-eight, s'.'ventecii hundre(l an(d iliiety-five, shall have called fortl the militia to suppress conibinations against the laws of the United States, anid to cause the laws to 1}) duly executed, andi the insurgelts shall have failedl to tlisptrse by the time directeld 1by the Presideint, a(nd when said insurgents claim to act under the authority of an11 State or States, and such (clailml is not disclaimed or relpu(liatedl by the persons exercising tlie functions of go(vernment in lsuchl State or States, or in the part or parts tihereof in which said colll)ination exists, nor s1uch insurrection sul)pressed by said State or States, then and in such case it may and shall be lawful for the President, bIy proclamation, to declare that tie inlllahitants of such State, or any section or part tlereof, where such insurrection exists, are in a state of insurrection against the IUnited States; and thereupon all comnercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease ande unlawful so long as such condition of hostility shall conitinue; and all goods and chattels, wares and nerchandise, co)ming from said State or section into tlhe other pItrts of the United States, and all proceeding to such State or section, by lalnl (r water, shall, together with the vessel or vehicle colnveying tile same, or conveying persois to or fromn such State or section, h)e forfeited to the TUnited States: Pro'ided, liotrr'(', That the President may, in his discretion, license and pertlit commercial intercourse withl any such part of sai( State or section, thle inhabitants of whic}h are so declared ii a state of insurrection, in such articles, and for such time, and by such persons, as he, ill his discretioni, may think most conducive to the public interest; and such intercourse, so far as by 1llil licensed, shall be conducted alnd carried on only in pursuance of rules and regulations )rescribedl l)y the Secretary of the Tre'asury. And the Secretary of the Treasury may appoint such officers at places where officers (f the customs are lnot nlow authlorized by law as may be needed to carry into effect such licenses, rules and regulations; and officers of the custolms alnd other officers slhall receive for services under this section, and under said rules and regulations, such fees and compl)enstationl as are now allowed for similar service undler other provisions of law. [Sectionls 5 and (i, chapter 22'5: 13 Uniiled t States Sltaites at Large, pages 37t6, 377, act of.lly '2, 164.] SEC. 5. A.td be it ftirther et ' acted, That wt eniever amny lpairt of a loyal state shall be under thle control of iisurgents, or shall )e in dangerous proximity to pllaces under their control, all commiiercial intercourse therein andl therewith shall be:subject to the same plrohibitions and conditions as are created by tlhe said acts, as to such intercourse between loyal anld insurrectionary states, for such timle and to such extent as shall from time to time blecome necessary to protect the public interests, an(l be directedl by the Secretary of the Treasury, with tlie approval of the President. 252 253 SE'. (i.. 11l I(e it.frthrl elrreteel, That so itiuchl of ti lf ifih section of tile act aIpprovedl May twenlty, eighteen hundred and sixty-two, and the fourth section of the act approved Marchl twelve, eighlteen hunidred and sixty-three, as directs the manlner of listriuting files, penalties, anil forfeitures, is llhereby repealed, and tlat, in lieun of tihe (distril)bution 1therelby directed to b1e mlladle to informers, co(llectors, and other officers of the c('stosll, the court de(creeilng c((ldemnati on. may award sluch comlpensation to cnstoiis-ollicers, informers, ctr other Ipei rsons, fr anl service( colnnected tlierew itli, as will tenld to proticte vigilance in rlotectig tlie lpublie interests, anwl as slhall be just and equitalble, il no,case, however. to exceed( the aggregate alliolunt lh eretofore directedi iv the saidl iftli sectioln. [P'rocl:i, ii tio, a (;Iat.l August 1i, IG61, issuedi( b te lc resident purstint t to s:i:l 't of.11ly 1:1, ls(;1. See 1'2 1 lited Sta tes Statiit(cs it lairge, tpav l'2i2.] B)Y Ti'E ]REISIIDNT (1' T'ill 'NI'TED' STATES Ol" A.M!Iit'A..\ 11.\ OCLAMATION. Whereas, on thle fifteenth lay of April, eighteen hliundred atund sixty-one, the President of tile United States, iln iew of an insurrc'tion against tile Laws, Constitution, and Glovernmlent )f tlie I nited States, which hlad broken out within tlhe States of South Carolina, (Georgia, Alalbama, Floridla, 3Mississippi, Louisiana and Texas, and il pursuance of thle provisiions of tile act, entitled "A.\ Act to pro ville for calin ot t ling fort h tle lilitia to execute the laws of tle Union, stpress insurrections, and repel invasions, and to repeal tile act inow in force for thiat I)urpose," approved February twenty-eighlt, seveniteen hundre(l aii(l inety-five, dlidl call forthl thle militia to suppress sail insurrectioi, lanl to cause llie laws of tile Ii te nion) to }e duly exectted, and the insurgents }have failed to disperse by tl( time directedl by tile President; and, whereas, suchi insurre'tion has since broken out, ndil( yet exists, within the States of Virginia, North Carolina, Tennessee, and Arkansas; andl, whereas, the illsurgients in all tlhe saidl States claimi to) act unilr tlie authority tlereof, ani sulch claim is not disclaimed or repudiaite(l b tile piersoins exercising tlhe functions of governm}ent in such State or States, or iii tile part o(r parts tliereof in which said combinations exist, n1(r lias stch ins1urre1tiion b1een suppressed by sa il States: Now, therefore, I, Abraham Lin co ln l'Prsident of tl ', lUite(l States, in pursuance of an act of Congress, approvel July thirteen, eighteen hundlred anllt sixtvy-oe, (o hereby (leclare tllat tlhe inhabitants of tlie said States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, andl Florida, (except tlle inhabitanits of that part of the State of Virginia lying west of the Allegllany mountains, an(l of such other parts of that State andl tlhe other States llereinbefore named as msav maintain a loyal adhesion to the U nion and the Constitution, or may be, froni timle to time, occupied and controlled by forces of the United States engaged in tlle dispersion of said insurgents) are in a state of insurrection against the 1United States, and that all commnercial intercourse tletween the same and the ita the inh itats thereof, it te exceptions aforesaid, and the citizens of other States and other parts of the United States is unlawful, and will remaiin unlawful untilsuch insurrection shall cease or las been suplpressed; that all goods and chattels, wares andt merchandise, coming friom any of said States, with the exceptions aforesaid, into other parts of the United States, without the special license and permission of the President, through the Secretary of the Treasury, or proceeding to any of said States, with the exceptions aforesaidl, by land or water, together with the vessel or vehicle conveying the samle, or conveying persons to or from said States, with said exceptions, will be forfeited to the United States; and that from and after fifteen days from the issuing of this proclamation, all ships and vessels belonging in whole or in part to any citizen or inhabitant of any of said States, with said excep 254 -tions, found at sea, or in any port of the United States, will be forfeited to the United States; and I hereby enjoin upon. all district attorne-_ys, marshals, and officers of the revenue and of the, military andl naval forces of the United States to be vigilant in the execution of saidl act, and in the enforcement of the penalties and forfeitures ilnlposedlordteclaredby it; leaving- any party whIo may thiiinklhimself aggree hrb t~o his application to the Secretary of the Treasury for the, reinission of any penalty or forfeiture, which the saidl Secretary is authorizedl ly law to grant if, in his judgment, the special circumstances of any case shall require such remission. In witness whereof, I have hereunto set my hand, and caused the seal of the United States to he affixed. IDone at the Clity of Washingtonl, this sixteenth day of Au-tist, in the year of our Lord eighiteen hundred andl sixty-one, and of the Independence of the 17nitedl States of America the eighlty-sixth. An1a X IIAM- L I N COLN. PLv the President: [Proclamnation dated April 2, 18503, issued b-y the lresialeiit, extending the restrictions on comnmercial intercourse, antliorize(I b~y act of Jnly 13, 1561, over certaini districts affected be the insurrection in the late rebl~wlions States, which liwere cexempted1 froii siith restrictions, by the proclamation (of Angnst 16, 1501. See 1:3 I1 nited States Statntes et Large, pages 730, 73U1. ')YTilE PitE'siDENT1 or TiHE VNITED SlATE'S iiF AM ERItA: A PROCLAMATION. Wh'Iereas, in l~imnsuanct'( of the act of congress,, app~roved July.13, 1861,.1 lid, by IProclamation (lated AtYuat 16, 1861, declare that the inhabitants of thme States of (icorgia, South Carohina V.\irginia, _Northi Carolina, Tennessee, Alabama, Louisiana, Texas, Ar'kansas, Mississippi, and Florida., (except the inhabitants of that Ilart of Vir-inia, 1 \'in, xx est ot the Alleglhany outoltains and (if such. other parts of that state amnd the other states Ihereinhefore tiamed as might maintain a legal adhesiomi to the Unioit and Con1stitution, or Ittglit be, frointimtte to tinm, occup~iedl andl controlled by forces oif the United States elinaaedl in thme dispersion of saidl insurgents), w~ere in a state of insurrection a-amins the United States, 'and that all coinnercial intercourse lbetweeni the stimte anid the, inhabitants thereof with. the excep~tions aforesaid, aitd the citizens of other states a11d other parts of the United States wvas unlawvful, and would remain uitlawftil, until such. insurrectioit should c'ease o~r be snhl)prcssedl, alid that all goods and chattels, wares and merchandise, coming from any of said states, with the excehitiomis aforesaid, into other halts of the United 'States, without the license and permission of the President, through the Secretary of thie Treasury, or proceeding to any of said States, with the exceptions, aiforesaid, byv land or water, togyether wirth the vessel or vehicle convey~ing the samen to or front saidl states, with the exceptions aforesaid, would be forfeited to the Vlnitedl States. And whereas, experience has shown that the excehitionis itade in and b)y said Proclaimation embarrass the tlte enforceienet of said act of July 13, 1861, and the prmolier regulation of the comnnercial intercourse authorized b.y said act with the lo~,al citizens of saidl states: Now, therefore, I, Abraham Lincoln, President oif the United States, (10 herebyv revoke thme saidl excelptions, amid declare that the inhabitants of the States of G'eorgia, South Carolina, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkanisas, Mississippi, Florida, and Virginia, (except the forty-eight counties of Virginia (lesignated as West Virginia, and except, also, the ports of -New Orleans, Key West, Port IRoval, ani IBeaufort in North Carolina, ) are in a state of insurrection agaimlst the United States, andl that all commercial intercourse not licensed and conductedl as provided in said act between the said states anti the inhabitants thereof, with. time 255 exceptions aforesaid, and the citizens of other States anti othier parts of the United States, is unlawful, and will remain unlawful, until such insurrection shall cease or has been suppressed, and notice thereof has been duly givent ly proclamation; and all cotton, tobacco, awlI other products, and all other goodls an (lchattels, wares and merchandise, coming fromi any of sail States, with the excep~tions aforesaid, into other Iparts of the LUnited 'States, or piroceed-ing to any of said States, with the exceptions aforesaid, without the licenise andl perinission. of the P~residlent., through thle Secretary of the Treasury, will, together with the vessel or- veh-icle conveying the same, be forfeited to the United States. In witness whereof I hiave hereunto s —et. mui hand and~ caused-~( thie seal of the Unitedl States to be aflixed. Done at thle City of Washington this secolld day of _April, Ak. 1). (eighteen lwn(ired andl sixty-three, and of the Ind(ep~endlence of thle Unitedl States of Ainerica, Kthe eighty-seventhi. AI OlXII AM I cL N.m" Byv thie Preidlent: XVILLIAM II. 'SENVxAR, S'ecrTtot'q ot State. REPORT ON OBJECTIONS MADE BY THE REPRESENTATIVES OF THE HONGKONG AND SHANGHAI BANKING CORPORATION TO ACT NO. 53 OF THE PHILIPPINE COMMISSION, ENTITLED "AN ACT TO PREVENT DISCRIMINATION AGAINST THE MONEY OF THE UNITED STATES BY BANKING INSTITUTIONS."9 [Snbiniitted May 0,1901. Case INo. 2820, Dtivision o)f Inmsuilar Affairs, War Departinenit.j Sml: I have the honor to acknowledge the receipt., iby reference, of a comnmunicationi addressed to you by Messr's. Ilopk ins &, Hopkins, counlsel for the Ilongkong and ShnhiBanking' Corporation, settingr forth certain objections, to act.. No. 53') of the P~hilippine Commission, entitled '' An act to p)revent (liscriminating against the nioney of tile U.nited States by banking institutions too'ether vt you 1 request for a r eport as to whether said act,' if imposted by the legislature of a State upon corporations (exercisinig 1 an king- franchises under the lawsNER of the State, would be inl violation of the custonmiary 1)rovis ions of ouir State constitutions." The act under consideration is- as follows: AC No. 53. ANN ACT to prevent liscrimiiinatinig against. the 1inimicy o)f tie Unitied States by banking inistitiitnin's. By ootliority atf tMe Pircseleot (ft tin'Uitoted Nottes, lie it i'ooited lyq t(l Uitc d Noates J1hippite~)' C'oot to iSxioo, tMat: SECTION 1. Every lbank of deposit in the Philippine Islands shall accept (leposits both in the inoney of the United States andl in Mlexican or other local currency, and shall hionor checks drawn on or repay sutch deposits in the kind (if nioney in. which they were made. SFc. 2. A willful vi-olation of the requirements of this act s;hall subject the muanage~r or officer of the lbank (causing such violation, om' takinig part in it, to a punishment for each offense by a fine of not more than $5,000, or by imprisonmient for not more than one year, or both, in the discretion of the court. 25 6 Sv.3. Nothin- lherein cont~ainedl shall lprevenit a banik o)r its officers fromn (eclining in good faith to accep~t deposits, so small in amiount as to be unprofitable, but a discriminiation in that. rcspect lietwecn Mlexican (r other local mioney andl that. of the I'nitel -States shall Ibe dleemed to lbe a violation o)f the requirements of this act. S-44c. 4. This act, shall take effect. on its pa,,saae. Enacted November 28, 1900. Thlie olbjectimns set. forth l)V- Messrs. Ilopkiiis &, Hopkins are as follows: it. That 1),anks doinog lbl1isiii5s ini territory affle(ted by said a(ct a re, by the provisions of section 1. deprived of their property w\ithoutt due, process of law. 2. That the provisions of sectiomi I imipose ani unidue restrictioni on the rights of contract lpossessed by the bank. ihe first essential to a correct understatndinig of this inatter is to find out the purposes of the Commission in paissing- said act, and the conuditions withl Which they were called upon to deal. The report of the Taft Philipp)ine Comminssioni to the Secretary of War, d~ated Noveniber 80. 1900. furnishes the desi red in formatilon. (S eepp. 805 -93.) From said report it appears that the, act is a remedial statute. initended (1) to prevent. (liscrilniniation againlst the currency. of the United States an(d (2) to remedy an evil resulting or anticipated fromn the, export of M~exican silver coins fromi the Philippines to Chinia. IFrom said report it appears that the necesstywhich occa-Isioned the adoption of the act (complained of., anid others of a similar chairacter, arose from the followingo condition of facts: The Mlexican silverd(ollar or peso has beeni for niany years the principtal mniediumn of exchange in the Ph-ilippine Island(s. The Amieri(-an oCccupationi behing accomiplished, it becamie necessary to establish, if p~ossib~le, a tixe(l1 ratio between Amiericani oiioey and the p)revailinig currenicy. anid to provide for the inicreased dem~ands of counnerce by iincreasino' the. volume of mioney in the ishlands. The baniks recognized this, an1td oni August 19, 1898, the y addressed a commuitnicationl to the Amnerictanii ilitary authorities (ini which the Ilong)konig -,and Shanighai Baniking C"orporation joined) setting forth these necessities, amid, as a meanis of mneetingv them, requestedl that they be nallowed to import Mexican silver dollars free of duty. The request was granted, and t~he milIitamy government (oolperated with t~hem in enideavors to i rcrease the mioney supply and to maintain the ratio, suggested by the baniks, of two Mexican dollars for one American dollar, by depositing in said banks $4,000,00( of Mexican currency. The importation of Mexiclan coiniage dutytfree was profitable to theblanks, and they engaged therein; but the mnaintenance of the fixed ratio deprived them, of opportunities for secuiring temporary lbenefits f rom speculative profits, and the Commission report that said banks did not cooperate with the military 257 government in that matter, but left the military government to sustain that burden alone. The only means of sustaining the ratio available to the military government was to establish and constantly replenish a (leposit devoted to the exchange of American money for Mexican at the desired ratio. Lacking the hearty cooperation of the banks, even this means was not entirely successful under the extraordinary conditions existing in the Philippines. The task was soon rendered more difficult 1) the action of the banks in shipping large suns of Mexican dollars to China. The deplorable international complications larising in China and the advent of foreign troops caused an increased demand and advance in price for Mexican coinage in that country. Thereupon the banks in the Philippines exported to China vast sumls of such coinage withdrawn froll circulation in the Philippines. Regarding such exportations the Commission report as follows (pp. 89-!0, lRep. Nov. 30, 19)(0): Between the 27th day of August and the 1st day of November, 1900, the two baniks aforesaid exported $2,087,500, anlt the d(eposit of Mexican money l)elonginl to the Government in those two banlks was, during that same period, depleted nearly the same amount. Tie Ilonigkong and Shanghai Banking Corporation was by far the more active in this )business of exporting Mexican money. During the period last stated it exported $1,935,000, an(l the Chartered Bank of India, Australia, alnd China exported $152,500. Between the 17th and 31st of October, $1,312,650 of Iexican currency was exported b)y the two banks referred to and l)y private speculators. In the three days that elapsed between the Ipul)lication of the proposed legislation lplacing a tax upon the export of Mexican (lollars and its enactment on the 12th day of November,.1,133,500 Mexicaii currency was exported; $500,000 of that sum bleing exported by1 the lIongkollg anid Shanghai Banking Corporation, $150,000 by the Chartered Bank of India, Australia, and China, andl the remainder by private speculators. In order to secure possession of as many Mexican dollars as possible and devote theim to their own purposes, the banks adopted two rules. The first rule required every depositor to reduce each deposit to Mexican currency. The effect of this rule was (() the depositors resorted to the fund of Mexicans provided by the military government for the purpose of maintaining the ratio, and thereby said Mexicans passed to the banks and were exported; (b) the currency of the IUnited States was discredited in the mlinds of the inhabitants of the islands; (c) the burden of maintaining the desired ratio was increased. The second rule required depositors drawing against their deposits in the bank to accept payment of said drafts in such currency as the banks tendered. This enabled the banks to export the Mexican dollars coming into their custody through the ordinary channels of business. To correct this increasing evil the Commission adopted two acts, requiring the payment of salaries of Government employees in United States money and the other imposing a duty of 10 per cent on Mexican silver coinage exported. These measures proving inadequate the act now complained of was adopted. 1394-03 17 258 It is well established that banks and banking in the United States are subject to legislative regulation and control. In a recent case the supreme court of Kansas say: The question with us is whether the banking business is of such a character as to warrant the legislature, in the exercise of the State's police power, to impose reasonable regulations upon the means and methods by which it is conducted. There are many occupations and lines of private business which the legislature, in the exercise of the internal police power, may rightfully regulate. Tiedman, in his work on Limitations of Police i'ower (p. 194), says: "It will probably not be disputed that everyone has a right to pursue in a lawful manner any lawful calling which he may select. The State can neither compel him to pursue any particular calling nor prohibit him from engaging in any lawful business, provided he does so in a lawful manner. It is equally recognized as beyond dispute that the State, in the exercise of its police power, is, as a general proposition, authorized to sulject all occupations to a reasonable regulation wherever regulation is required for the protection of public interests or for the public welfare." * * * * * * * Enactments controlling the loaning of money and regulating the rate of interest upon the same have been sanctioned from the earliest times, and the nature of the business (lone by banks in dealing in money, receiving deposits for safe-keeping, discounting paper, and loaning money is such, and is so affected with a public interest, as to justify reasonable regulation for the protection of the people. * - - * * * * A well-known author in his treatise on banking uses the following language: "At common law the right of banking pertains equally to every member of the community. Its very exercise can be restricted only by legislative enactment, but that it legally can be thus restricted has never been questioned." (1 Morse, Banks, ~ 13.) The same subject was considered in the recent case of State v. Woodmanse (N. Dak., 46 N. W., 970), where it was said that "the business of banking, by reason of its very intimate relations to the fiscal affairs of the people and the revenues of the State, is and has ever been considered a proper rubject of control and strictly within the domain of the internal police power of every State. As a matter of fact we have been unable to find an authority-and we have searched diligently-which has ever questioned the right of the legislature in the exercise of police power to regulate, restrain, and govern the business of banking." (Blaker et al. r. Hood, 53 Kans., 499 (1894); 36 Pac. Rep., 1115; see also Cummings r. Spannhorst, 5 Mo. App., 21; see also People r. Utica Ins. Co., 15 Johns., 358; People v. Barton, 6 Cow., 290; Curtis r. Leavitt, 15 N. Y., 9; State v. Williams, 8 Tex., 255; Nance r. Hemphill, 1 Ala., 551; People r. Brewster, 4 Wend., 498.) If it be conceded that a Government exercising sovereignty may properly provide and maintain a currency adequate in character and volume to the wants of the commerce in which its people are engaged, then the act under consideration is to be commended and not criticised. Regarding the specific objections to said act set forth in the communication of Messrs. Hopkins & Hopkins, I have to report as follows: The complaint that said act "has the effect of depriving the banks of their property without due process of law" is not well founded. That said act may reasonably be expected to have " the effect of depriving the banks" of unacquired profits of speculative assaults upon the currency of the Philippines and the good name of the money issued by the United States is doubtless true. 259 Banking is a lawful calling, and the right to pursue a lawful calling may be a valuable property right. But said right is subject to j.ss pu)tlicwnt, and this inferior right is to be exercised in harmony with "those principles by which the public good is to be considered and promloted." It does not follow that because a calling is lawful, one who adopts it may select any and every means of pursuing it: or that restraints or regulations in regard thereto, necessary for the protection of the rights of the public, are violations of the letter or spirit of constitutional guarantees of property rights. The requirement of said act that "every )bank of deposit in the Philippine Islands shall accept deposits both ill the mloney of the United States and in Mexican or other local currency " is objected to as follows: Thus, under tlis singular and capricious law, the manager of a bank, should lie refuse to receive a deposit tendered l}y any objectionable person, no matter how dangerous to the safety of his institution or how obnoxious a character that person might lbe, woul( be liable to a fine of $5,000 or ilmprisonment for one year. (See p. 7, letter of Messrs. Hopkins, Fel. 18, 1901.) This complaint construes the provisions of said section as having reference to dposito, s instead of dpo.sits. Since the act is remedial it must be construed as relating exclusively to the purpose sought to be accomplished. That purpose is to prevent the exportation and decrease of the volume of currency used in the Philippines. It would be a forced construction indeed that would make said section read: ' Every bank of deposit in the Philippine Islands shall accept a.s a do,lp'oitoi ary person tecndering deposits both in money of the United States and in Mexican or other local currency." It must also be considered that section 3 of said act declares that disc'';nin1ttiotl between deposits of Mexican or other local money and the money of the United States is what constitutes the offense. Since the act provides for inflicting a penalty, it is to be strictly construed in favor of a person accused of violating it. The objection referred to is based on a construction which is forced and a unwarranted and therefore untenable. The requirement of said act that depositors shall be paid in kin(l instead of ',alc is complained of as making it necessary for the banks to go into the market and become unwilling speculators in a variety of coin. This necessity does not seen probable. In no event would the bank, if called upon to make payment in kinld, be required to pay a greater number of coin.s, or tokens, than it had received. Apparently this rule is one of evenhanded justice. The only disadvantage resulting to the bank is that, in a measure, it is deprived of the opportunity for using its position and information to secure profits on the fluctuations in value of coins and other currency, and may thereby be induced to make effort to secure and maintain a stable value. But, if the objection were well taken, the requirement is no harsher than the 260 prevailing rule which enables a creditor to d(emand payment in the kind of tmoney known as legal tender, which is by no means the only kind of money in use in the United States. But the purpose of this requirement of the act is simple, apparent, and commendable, being to compel the b)ank to keep on htand sufficient Mexica!n coins to pay the deposits of Mexican coins, and make it unsafe for the bank to export any considerable number of theni so long as they remain the favorite currency of the Philippines. The contention that said act applies only to i?/corporated banks and is therefore class legislation, is answered )by the opening words of the act, which are: "EJvc'q batr,' ofdej)osit in the Philippine Islands shall, etc." When one recalls the s;tlingelnt provisions of the Federal banking act and of the bank laws of the several States regarding surveillance, inspection, regulationll and control of b)anking institutions and the penalties therein prescril)ed for acts and onissions purely aiiirlap2)'oh/,iita, it is Ifmanifest that the act of the comllmission does not violate the general principles under which the. banking business is conducted in the United States. In generil the provisions of laws al)ove referred to are too well knllown to need recital. There is one of a character similar to those of the act under consider~ation, to which attention is directed. The act of Congress approved July 17. 1882. provides: No national-banking association shall be a memeber of an5y clearing house in which su(1ch certificates (silver) shall not l)e receivab)le in tile settlement of clearing-house balances. (Supp. to U. S. Rev. Stats., vol. 1, p. 357, chap. 290.) The purpose of this enactment was to prevent discrimination against the llonev issued by the United States known as " silver certificates.' The Secretary of War approved the views expressed in the foregoing report, and advised the attorneys for the Itongkong and Shanghai Bankin Corlporation as follows: \.yAv- 7, 1901. (;ENTLETEN: I have the honor to acknowledge the receipt of your communication of February 18, 1901, wherein you set forth certain objections offered on behalf of the Hongkong and Shanghai Banking Corporation to the legislative act of the Amlerican Philippine Conimiission, No. 53, entitled "'An act to prevent discrinminatintg against the money of the Unite(d States by l)anking institutions." Your letter was referred to the lawx officer of the l)ivision of Insular Affairs with instructions to examiniie the qluestions l)resented atlol replort thereon. A copy of his report is herewith transimittel. I concur in the conclusion reached by said law officer, that the provisions of sai(l act do not contravene the princ(iples establishe(d for thle plrotectiomn of property rights in the United States nor the accepted rules governing legislative regulation and control of the banking businiess in the United States. Yours, respectfully, ELIRnt ROOT,,8ecretary of }' ar. Messrs. HOpmKINs & IHocpmNs. 261 IN RE, ORDER OF MAJOR-GENERAL OTIS REQUIRING SMITH, BELL & CO., A BANKING HOUSE AT MANILA, TO TURN OVER TO THE AMERICAN AUTHORITIES ONE HUNDRED THOUSAND DOLLARS, HELD BY SAID HOUSE AS THE PROPERTY OF THE INSURGENT FORCES IN THE PHILIPPINES. [Siubmitted October 1), 1.99. ('se No. 7-3s, Divisiolln Inslalr Afti'irs. War lDipartinclt.] SYNOPS )'IS. 1. I nder the law of military occupation and the well-estalblishedl doctrine of l)elligerent rights, the United State as wa authorizedl to require saild )ankling inlstitutiOll to pay to the military authorities of the nllited( States the amounllt owing to the insurgent organization. 2. The right of the ti lite(l States to, enforce payment and1 secure tle fllund lidl not ldepend upon the possession or' surrell(e'r (,' the draft issluedl } tlhe 1l)aik whein the o111lnev was receive(l l v it. SIr: This matter arises as follows: Smith, Bell & Co. is I British b)ankinlg filrm, with principal place of business at Manila, P. 1., and various b}ranch houses at (lifferent localities in the Philippine Archipelago. On January 23, 189l), the branch house at Legaspi, Luzon, sold a draft for i()100, )00 dra)wn inl favor of Mariano Trias, who was the custodian of fiunds, or treasurer, of tlhe insurgents. The military authorities of the United States calllel Ilpon the firml at its Manila office and required saitd firmll to pay over to the American authorities tlhe sumi of 81,00,0o00), being the amnount (of said draft. The firm complied under protest. 'The draft was not ill the possession of the authorities of the United States and was not delivered to Smith, Bell & Co. Said t(raft hlas not been presented by alny person to said banking concern, or alyi of its branches, and( paynelnt thereon demanded. Smith, Bell & Co. applied to the British Government to secure relief. The firm represents that it has agencies illt number of places in the island of Luzon, where its agents are in the power of the natives, and they fear that they will be compelled by force to deliver to the insurgents $100),001( if said draft is presented for payment. The State Department transmitted to the tWar Departmlent a communication from the British charg( d'affaires at this capital, making known the desire of the British Government to afford Smith, Bell & Co. such protection and relief as is possible. UpoIn receipt of tlhe communication from the State Depatrtment the matter was referred to Major-General Otis for report on the fact^. Replying thereto MajorGeneral Otis says: Respectfully returned to tlie honorablle tle Secretary of War, Washington, 1). C. Attention invited to im cablegram of June 27. The inclosedl copy of letter of General Hfughes contains somle errors. lie actedl under mn verbal directions in the 262 matter, and my information at tire time was that the draft in question was drawn for $146,C'0 insteal of $100,000. Inclosed and attached hereto is a true copy of the accelpted( and outstanding draft. It will be seen that it is drawn in favor of Mariauo Trias, ior funds receive(l froml General Luckban. It was accepted and made payable February 19, and on February 3, at Malolos, was indorsed to Sylvester Legaspi. Luckban was at the time and is still an insurgent general, colmmanding in the southeastern portion of Luzon and the islands of Samar and Leyte, where he has robbed and is still robbing the people without mercy. Trias was at the time the draft was drawn treasurer of the insurgent government, anld le is now the general conimanding tle insurgent troops (f southern Luzon. Legaspi succeeded hi as insurgent treasurer. The original draft is now in this city andl will not be further negotiated. The party holding it lhas been informed that if he attemptts to collect it or lets it pass out of lhis possession his house and lanls will l}e confiscated to the United States, and he is thoroughly aware of that fact. The draft has already passed through the hands of several influential Filipinos, anl it required some time to locate it. It is conceded that the fund seized was intended to be used for promoting the insurrection and that the insurgents sought to utilize the bank as a means of transfer for said funds. Under the laws and usages of war the United States may lawfully seize and retain such funds, and to that end may compel the person having such funds in his possession to pay over the samle to the militarv authorities. The most favorable view of the conduct of the bank in attempting to perform the service rendered the insurgents herein, is to consider the obligation assumed by the bank as creating an indebtedness to the persons associated in the insurrection and the draft as an evidence thereof. Such indebtedness may properly be collected by the United States as a military measure calculated to weaken the insurrection. The real question involved appears to be as to the legality of said enforced collection, when the United States was not in possession of the written evidence of the indebtedness and therefore unable to surrender said writing to the debtor. Upon authority of the determination made of such question in the instance of the debts due the elector of Hesse-Cassel and collected by Napoleon, it may confidently be asserted that the action of the United States was lawful. The elector of JIesse-Cassel was accustomed to sell the valor of his soldiers (Hessians) to other sovereigns. The money he received therefor he loaned to his subjects and to citizens of other German States on notes secured by real estate mortgages, payable to himself. After the battle of Jena lie was forced to leave his principality, and on doing so carried away these notes and mortgages and thereafter retained possession of them. He entered the military service of Prussia, then at war with Napoleon. Hesse-Cassel was governed by the laws of military occupation until it was incorporated into the kingdom of Westphalia, over which Napoleon made his brother Jerome king, and 263 remained a part of that kingdom until 1S13. During this period the Bonapartes, both Napoleon and Jerome, collected the amounts due on said notes and mortgages made payaable to the elector and carried away by him. This seizure was justified upon the ground that the property was that of a person remaining in arms against the legitimate sovereign of the State. The Bonapartes had no difficulty ill collecting such of these delts as were due froml their sll)jects; }but where the debtors resided in other States force could not be resorted to. To induce voluntary paylment a portion of the debt was remitted. Upon the elector leilng again installed as ruler over Hesse-Cassel, he attempted to compel a second payment of the debts so paid to the Bonapartes. The question was, Whether debts owing to the elector were validly discharged by a payment to Napoleon and receiving from him a quittance in full? This question was finally determined in the affirmative. As to the exact point now being considered Phillimore says: They rejected the doctrine that because the prince liad retainedl possession of tle instruments containing the written acknowledgments of the deltors lie therefore had constructive possession of the debts. (Phillimore's Int. Law, III, 841.) With reference to the sanle case Halleck says: They rejected the consideration of the justice or injustice of the war, * * nor did they attach any importance to the fact that the prince had carried away with him and retained possession of the instruments containing the written acknowledgement of the debtor. (Halleck's Int. Law, 3d ed., chap. 34, sec. 29; see also Hall's Int. Law, 4th ed., p. 588; Snow's Cases in International Law, p. 381). If the relationship between the bank and the insurgent organization was that of debtor and creditor, and the United States was justified in collecting said debt, it follows that the original creditor is without the right to require payment a second time. If by force he compels the surrender to him of mloney or other property upon a claim of existing indebtedness by reason of this transaction, such use of force is without the sanction of laws and usages of war as applied in civilized warfare. It would be plain plunder. It would be "the felonious and forcible taking from the person of another goods or money to any value by violence or putting him to fear," which is the legal definition of robbery. Such acts of outrage are the usual attendants upon insurrection, riots, and other lawless forces. The military forces of the United States are now being used to destroy the power of the insurgents in the Philippines to perpetrate outrages by force and intimidation. One step in the progress of this undertaking is to prevent the insurgents from deriving any benefit from this fund of $100,000. It may be advisable to inform Messrs. Smith, Bell & Co. of this fact, and, also, that said banking concern now owes recognition to the sov 264 ereignty of the United States and obedience thereto in the Philippines. The owners should be made to clearly understand that the United States requires them to see to it that the insurgents shall not benefit from this fund. If to comply with this requirement it is necessary to withdraw their funds and employees fronl localities infested by insutlrgents, such withdrawal must be made. The fact that this banking concern is operating tnller ain Englishi charter (loes not relieve it from ol)edience to the authority of the United States, nor enable it to deal with the insurgents with imllpunity, nor justify it in demanding indemnity firomn the United States when its dealing with the insurgents involve it in distaster-financial or otherwise. If the views herei~n expressed fare approved ly the State Department it may prevent further complications if the State Departltent could induce the GoNvernlment of Great Britain to illform Messrs. Sllith, Bell &v Co. that.said Government 'assents to the views entertained by the United States regardilg this itmatter.. AMessrs. Smith, Bell c& Co..are probably acting in ignorance of the laws and usages of war and the comity of nations, but in undoub)titg faith that the British G(overnment will uphold them in the exercise of rights accorded by the usages of trlade ill timles of pleace. The situation under the conditions existing in the Philippines is liable to create international complications, which could be obviated by Ca little judicious advice or admonition from at source respected by the intiended b)eneficiarvl. Meanwhile it might )e well to iask 'Major-General Otis whtat, if any, objection or obstacle pirevents the seizure of the driaft. THE CONFISCATION OF PRIVATE PROPERTY OF ENEMIES IN WAR. [Sublimitted Februtary 1 190)1. ( Tase No. 2414, I)ivisiol of Inisular Afftirs, War I)epartnmeut.] SYNP()P'SIS. 1. When the United States is engaged in war, foreign or civil, thle President, as chief in commlnand of a belligerent force, may l)revent the shooting down of the soldiers of the United States by depriving the men who are doing the shooting of the means of securing aimmunition. 2. The authority so to (lo is derived frowm the laws of war, and constitutes a belligerent right, the exercise of which is subject to the discretion of that branch of the Government iwhich is charged with the conduct of belligerent undertakings. 3. For the accomplishment of this purpose the President may use all branches of the Imilitary establishmnent, including the several (lepartinents of a military government of territory subject to military occupation. 265 4. Should the President desire to utilize the services of the Federal courts of the United EStates in promnoting this purpose or military undlertaking, since these courts (derive their jurisdiction fromi Congress an (lo(1 not constitute a part of the mnilitary establishment, hie munst secure from Congress the necessary action to conifer suich jurisdlictioni upon saidl courts. o. The laws and usages of war make a (distinction between enemies' pr1operty cpue on the sea anl lproperty captured on. land. The jurisdiction of the, courts of the United States over property (calptured at sea is held not to attach to lprolperty captured on land in the absence of Congressional action. 6. If it be necessary for Congress to confer authority lbefore enemies' jprivate p~roperty on land can b~e confiscatedl, such authority exists by virtue of the provisions of sections 5308 and 5309, Revis.edl Statutes o)f the United States, an1 mnay be exercisedl against the insurgenits in tI i Philippines, prorided the insurrectio n therein is agyainst ''the Government of the U~nitedl States.'' 7. If confiscation of p~rivate property is intendedl as a punishment for offenses, ot a criminal character against the Fiederal Government of the United States it is necessary for the legislative branch to define the crime, prescribe the ~)enalty, andl confer the jurisdiction to inflict such penalty. 8. If such co.nfiscation is inten(Ied as a p~unishiment for (.)ffenses against the mmilitary governiment of the P~hiIi ppines, the legislative branich of4 thiat governmient mmav provide the necessary legislation. SIRz: I have the honor to acknowledgre thle receipt of i our request for a report on the aibove-entitle(1 matter, and in response thereto I have the further hionor to submit the following: The right of confiscation is a soverinright. In timie of peace the exercise of this right is liniited andl controlle(1 by the domestic (onlstitution and institutions of the G'overunient. Iiil time, of war, whene the iight is exercised againhst, enemies' property its a war measure, such. right becomes a bellig~erent right, and as suchll is not subject to the restrictions imlposed iw domiestic, institutions, but is reouflatedl and controlled by the, laws and utsages of wvar. U nder ouir form of government Congress miay provide the ways and means of exercising this right, as it does ani arni and navyv to Prosecute a warl-, but the use and application of said ways and mneans devolve upon the. Executive and those charged withi the conduct of miliitary operations. All property withimi the emienlifs territomy is neiieii S property and subject to capture, and confiscation. (Young P'. United States-, 97 U. S.,3. The same rules, relative to capture and confiscation of property apply to civil wars as to wars lbetweemi nations, for a like nece~ssitv exists for injuriiig amid weakening the hostile forc -e. Miller?e. United States, 11 Wall., 1308, 313; The confiscation cases, 20 Wall., 92; Glay's, Gold, 13 Wall. 351; The hAny lJi-?wicA, 2, Black (.1.. 5.), 636.) Confiscation of private property is more easily justified inl civil wvars than in foreign wars, for- the insurgents inl levying war against the government to which they owe allegiance not only subject their property to the hazard of that war, but also ture guilty of treason. 266 In exercising the right to confiscate enemies' property, modern nations make a distinction between property on the sea and property on land. The right exists alike in both cases, but the practice is to refrain fronm confiscating property on land for a period after the condition of war is found to prevail, while the seizure of property at sea is commenced as soon as war is recognized or declared to exist. The property of citizens of many nations is to be found on the sea, and, as the sea is a common highway, no presumption of hostility results from the lroperty being there, such as results froll its being in hostile territory; therefore prize courts are established for the purpose of determining the liability to confiscation of captures at sea. The jurisdiction and procedure of these courts are fixed by statute and common law, and continue through times of peace as well as times of war. Being specially provided to deal with property captured at sea, this jurisdiction is held not to attach to property seized on land. The courts of the United States are dependent upon Congress for their jurisdiction; therefore, in order that the courts of the United States may entertain proceedings regarding co.nfiscation of property seized on land, it is necessary for Congress to confer authority therefor. (Brown v. United States, 8 Cranch, 110.) Confiscation by court procedure is not the only means by which a belligerent nation may dispose of enemy's property, for the purpose of weakening that enemy or strengthening itself. Under the laws and usages of war all property situated in enemy's territory is presumed to be tainted with hostility anid liable to confiscation, therefore it is not necessary to have that question judicially determinede as is done when property is captured at sea. The final purpose of court proceedings in confiscation is to pass the title of the property to the capturing nation, and thereby enable it to convey the title to others. Under the laws and usages of war title to personal property passes with possession, and therefore title to such property passes to the captors when the capture is mlade complete and his possession becomes firmly fixed. It is well understood that capture passes the title to such property as arms, ammunition, and other munitions of warfare, or to property, public or private, of such character as may assist the enemy in promoting his undertakings. Belligerent nations do not resort to court procedure to exercise the righ'ts of impressment of property, reprisal, or the enforcement of military contribution. Yet the exercise of these rights constitutes confiscation, and the title to the property seized passes to the captor upon the capture being completed. The rule as to real property is different. When the proprietary interests in real property belong to the public or belligerent sovereignty, the title passes to the capturing belligerent and remains there during the period it is occupied (actually or constructively) by the captor. If such occupancy becomes permanent, the title is permanent. 26;7 Under the laws and usages of modern warfare, when the title to real property is in a private individual the title does not pass,by capture or hostile occupation of the territory. Such occupation, however, gives the occupying b)elligerent the right to confiscate real estate which is the subject of private ownership. This right is seldom exercised. Whether it is exercised or not usually depends upon the individual owners. If they persist in defying the new sovereignty, or refuse obedience to the military- government instituted pursuant to the lax-ts of military occupation, or wantonl- violate others of the laws of war, or continue ill unauthorized efforts to prevent the advent of peace, then recourse is had to confiscation of their lands and goods as a imilitary measure for the accomplishment of the purpose of all military measures-to compel peace. Such confiscation may be1. A military measure to deprive such enemy of mleanrs which he is using or is likely to use in opposition to the purposes and objects of the endeavors in which the belligerent imaking the confiscation is engaged. 2. A punishment for all overt act in violationi of the laws of watr, the laws of the llilitary government of the territory, or the sovereignty to which the territory is subject. In order to julstify such confiscation it is necessary to establish certain facts relating to the individual and the use of the property which is being made, contemplated or prol)able. This produces a situation analogous to that of property captured at sea. It may or nmay not be liable to confiscation, and the question is a proper one to refer to a tribunal which may exercise judicial powers in investigation and determllination. When the United States is engaged inl a war, which branch of the Government is authorized to declare the will of the sovereignty of the United States regarding tile confiscation of private property of the enemy, prescribe tthe rules therefor, atnd means for their enforcementl Undoubtedly Congress may exercise this authority, for the Constitution grants to Congress the right " to define and punish * *' offenses against the law of nations," and "to * * * lmnake rules concerning captures on laud and water;" also "''to mIake all laws which shall be necessary and proper for carrying into execution the foregoing powers atnd all other powers -ested }by this Constitution ill the Government of the United States or in any department thereof." (Section 8, article 1.) During the civil war Congress exercised this authority and passed two acts, entitled as follows: An act to confiscate prop)erty us(ed for inlsurrectionary lprlpises. (Appl. Aug. 6, 1861. 12 U. S. Stat. at Large, 319.) An act to sulpi)ress insurrection, to punish treason and rebellion, to seize and confiscate the I)roperty of rebels, and for other lprl)oses. (App. Aug. 6,1861. 12 U. S. Stat. at Large, 589.) These acts were held to be a legitimate exercise of the war power and constitutional. (Miller v. United States, 11 Wall., 294.) The attention of the Secretary of War is directed to the fact that thel provisions of the act approved August (, 18631, are continuing ]In effect, are not confined to the geographical area designated as the United States, and are declared by the Supreme Court to be an cxcercisc of the war powers of this Governinent, powers -which extend to and ale exercised in any and every country wherein the United States becomes involved in war. Tfhe provisions of saidl act were incorporated in the Revised Statutes of the United States wherein it is provided as follows: SEC. 5:308. Whencver during any ins-urrection against the Government of the Unie~lStaesafter the President shall have, (eclare(1 by prolmtoihttelw of the United States are opposed, and the execution thiereof qbstructed, by coinbinations too powerful to be suppresse(1 by the ordinary course of judicial proceedings, or by the vower vested in the marshals bv 1aw, any person, or his agent, attori ec, or emnployee, purchiases or acquires, sells or, oivc(, any property of whatsoever kind or description, with intent to use or empllov the saine, or suffers the same to bc used or employed in aidling, abetting, or p~romnoting such insurrec(tionI or resistance to the lwor anx' l)erson engagedl thmercin; or being the owvner of any such property, knowingly us-es or emnploys, or consents to Aruche use~ or cm-rploymnent of the same, all such lpropertv shall he lawful subject o.f prize and capture wh~erever found; and it. shall he the dutyr of the P~resident to cause the same to be seize(1, confiscated, andl Con1deninedl. SE~c. 58309. Such prizes alld cap~ture shilall. he condlemned in the (listrict or circuit court of the United States having jurisdiction of the amount, or in admiralty in any district in which the same ( niay) he scize(., or into which th-ey may he taken and proceedlings first instituted...he original act prlovided: That if, during the, lresent or m(10 'utiore insurrection against the (4overnmnemt, of the U'nited Statets, etc. (1 2 Stat. L.,:319.) If the insurrection in the Philippines is held to be, an "'insurrection agint the Government of the U'nited States, it wo Ld pe ta Congress has already declared the will of the sovereignty of this nation an~d declared for the (confiscation of the p)Livate property of the, insurgents, and that proceedings in regatrd thereto were to be conducted in admiralty. i-f there are courts in the Philippines exercising admiralty jurisdiction, may they not also exercise jurisdiction in confiscation niatters?, If there are no courts in the Philippine's exercising jurisdiction in admimalty, may not the jurisdiction be conferred upon theni by the Commission 1)y the exercise of legislative powers? The Supreme Court of the United States sustained the jurisdiction in admiralty conferred upon the Territorial courts of Florida by the Territorial legislature. (American Ins. Co. vi. Canter, I Pet., 511.). If this view is accepted, attention is directed to the fact that Said provisions become operative ",af ter the President of the United States shall have declared by proclamation that the laws of the United States 269 are opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings." It is the " law'" not the statutes of the United States that that are to be declared "opposed." The authorities established (in the judgment of the writer): 1. That the right to confiscate private property, as a military measure intended to promote the purposes of a war, is derived fromn the laws of war. The right is not conferred by legislation, but its exercise may be regulated thereby. (Smith r. Brazleton, 1 Heisk. (Tenn.), 59-61; Mrs. Alexander's Cotton, 2 Wall., 419, 420; The Prize Cases, 2 Black, 671; Brown r. United States, 8 Cranch, 122, 123, 149-151, 154; Planters' Bank r. Union Bank, 16 Wall., 483; Gray Jacket, 5 Wall., 369; Sprott '. United States, 20 id., 459% Lamar r. Browne, 92 U. S., 187.) 2. Where judicial proceedings are had to complete the transfer of title and provide a record thereof, such proceedings are in ro,,, and it is not necessary that the person of the proprietor shouldl be in the custody of the court. (The Confiscation (ases, 20 Wall., 93, 104; Miller r. United States, 11 Wall., 268.) 3. A confiscation of private property intended to prevent the use of said property by the enemy as munition of war is an exercise of the war power of the nation malde to protect and prolmote its belligerent rights. (Young v. lUnited States, 97 U. S., 39; Miller v. United States, 11 \Wall., 268.) 4. A confiscation of private property belonging to an insurgent, a a lunishment for treason, is an exercise of tlhe )muticilptl pIower of the nation, lna(le to protect and( promote its,o'cereign rights. (Ilid.) 5. Whlile engaged in suplpressing an insurrection, ti}e United States lmay exercise the war powers and the sovereign powers of a nation. (Ibid.) When confiscation of property is intended as lpunishment for criime, it is doubtless necessary for the legislative branch to authorize such punishment, for in the United States crimes and their penalties originate in statutes. Such is not the case when the war powers of the nation are called into action. A failure to observe this distinction has produced.a theory that the right to confiscate private property of the enemy must be conferred upon the military authorities by the political branch of the Government, when in fact it is derived from that b)ranch of international law known as the laws and usages of war. It is the right to utilize the courts in confiscation lmatters that is conferred by the political branch. So high an authority as the American and English Encyclop&edia of Law failed to observe this distinction, and in its first edition laid down the rule as follows: The power to decide whether enemy property seized upon land shall be confiscated or not in any war waged by the United States is a political one, and Congress must decide the question in any such war. (Vol. 11, p. 459, 1st edl., title: International Law.) This language is omitted from the discussion of International Law in the second edition, and therein it is stated: It was decided by the Federal Supremne Court early in the nineteenth century that property found in the United States at the outbreak of a war with the country to which the owners of the property belonged was subject to confiscation, but that the 270 exercise of this right was a matter for the legislative department, and in the absence of an act of Congress providing for such confiscation the property could not be judicially condemned, a mere declaration of war not being sufficient for the purpose. (Vol. 16, p. 1152.) In Young v. United States (97 U. S., 39) the court say (p. 58): It is equally beyond doubt that (luring the war cotton found within the Confederate territory, though the private property of noncombatants, was a legitimate subject of capture by the national forces. We have many times so decided without dissent. The authority for the capture was not derived from any particular act of Congress, but from the character of the property, it being "potentially an auxiliary" of the enemy and constituting a means by which they hoped and expected to perpetuate their power. The court further say (p. 67): Property captured (luring the war was not taken by way of punishment for the treason of the owner any more than the life of a soldier, slain in battle, was taken to punish him. lte was killed because engaged in war and exposed to its dangers. So property was captured because it had become involved in the war, and its removal from the enemy was necessary in order to lessen their warlike power. Lincoln's famous question to those who complained of the arrest of Vallandigham presents the justifying principle. As applied to the situation in the Philippines, the question is: May not the President, as Commander in Chief of the Army and Navy, prevent the shooting down of American soldiers by depriving the men who are doing the shooting of the means of securing ammunition II. In the absence of legislation by Congress providing therefor, may the military government in the Philippines provide for the confiscation of property found on land in said archipelago, when the property is owned by individual insurgents, and authorize the courts of the islands to conduct proceedings in condemnation? If the confiscation is intended to be a punishment for treason against the Federal G(oeernment of the United States, it is undoubtedly necessary for Congress to impose it. If the confiscation is intended as a punishment for resisting the lawful authority of the military government of the Philippines, that government has the right to inflict it and may use its courts for that purpose. This question arose during the existence of the military government in New Mexico. The conquest of New Mexico by the military forces of the United States was accomplished by the campaign of 1846. In compliance with instructions given by the President, the officer in command, General Kearny, organized a civil government for the occupied territory and filled the executive and judicial offices by appointment. In Decem 271 ber, 1846, the native inhabitants organized a conspiralcy to overthrow the United States authority in New Mexico. On the night of January 15, 1847, the insurgents began hostilities and.succeeded in killing the governor and a number of others-officials and citizens of the United States. The insurrection became general, and the declared purpose was to kill all the Americans and those AIexicans who had accepted office under the American G(overnment. The insurrection was suppressed by the military forces of the United States and a number of the insurgents captured, and by the latter part of 1847 comparative safety was secured and maintained by stationing troops at various points. Of the insurgent prisoners, fifteen or twenty, perhaps more, were tried by courts-martial, sentenced to death, andl executed. The others were turned over to the civil authorities of the military government for trial il the civil courts. A grand jury indicted four of them for the offense of treason against the United States. One was tried by a jury and convicted. The prisoner challenged the jurisdiction of the civil court and assailed the indictment on the ground that he was not a citizen of the United States, nor bound to yield allegiance to that Government. Strong pressure was brought to bear in his behalf, and the district attorney, AMr. Blair, referred the matter to Washington for instruction. He aldressed his communication to Hon. John Y. Mason, then Attorney-General of the United States. Said letter was as follows: SANTA FE, April 1, 1847. SIR: You will doubtless have receive(l before this reaches you the particulars of the late insurrection in the northern (listrict of this territory through the public prints. Of the prisoners taken in the suppression of tllat rebellion one of the leaders was executed under sentence of a court-martial, tile remlainder were turned over for trial to the civil authorities on the charge of treason against the United States. At a term of the United States district court for this territory, held at this capital in ]\[arch last, four conspicuous persons in the late rebellion were indicted for treason by the grand jury; three put upon their trial, one of whom was found guilty and sentenced by the court, one discharged under a nolle prosequi, and two obtained continuance to the adjourned terln of the court in May next. Some twenty-five prisoners were discharged, the gralnd jury not finding sufficient evidence to indict them for treason. About fifty prisoners are confined at Taos, in the northern district, awaiting trial at the term of the court comlmencing on the 5th instant, at which time both the circuit court for that county and the United States district court will be in session. A number of the prisoners can be identified as active participants in the massacre of the late Governor Bent and others; these it is the intention to prosecute before the circuit court; but many others, who were active in the planning and exciting the late insurrection, I feel it my duty to prosecute for treason against the United States. I have taken the liberty to lay these particulars before you, in order that I may understandingly ask your counsel and advice, which I have had a great desire to obtain before entering upon these prosecutions, but the want of opportunity to communicate with you did not permit it. You are doubtless fully aware of the manner and form in which Brigadier-General Kearny declared New MIexico a territory of the United States, and its inhabitants 272 citizens, subject to her laws and liable to penalty for their infraction in like manner as citizens of any other Territory of the United States. By the authority in hlim vested he established a civil government, a superior court, with jurisdiction as a United States district court. In this last-named court I, by appointment, act as United States district attorney, and have felt it my duty to prosecute all acts of treason colmmitted by the inhabitants of this territory, holding them responsible for all their acts as citizens of the United States. In nearly all the cases tried the counsel for the defense have entered pleas to the juris(liction of the court, which the court overruled, and in the case of Trujillo, who was convicted, the defense plead the jurisdiction of the court before the jury, declarilg it to be unconstitutional to try any native inhabitant of New Mexico for the crilne of treason against the Government of the United States until by actual treaty with Mexico he became a citizen. The court ruled out any consideration of this point by the jury, leaving it only the evidence and the facts upon which to make its verdict. Considering that as constituted, the court was bound by its oath to view all the inhabitants of New Mexico as citizens of the United States and to execute the laws in regard to them as such, leaving the responsibility of the question of its constitutionality to fall back upon the power which constituted it. I am anxious to receive your counsel and advice at the earliest possii)le mloient in regar(l to all the matters above referred to. Mails for tllis )lace will no doubt leave Fort Leavenworth regularly hereafter, and I trust you will oblige me by replying to this by the first opportunity. Very respectfully, your obedient servant, FRANK ['. BLAIR. 101on. JOHN Y. MASON, it.:1tornef-General of the Unite, Nto(teS. The Attornle-General referred the matter to the War Department. Hon. \W. L. Marcy was then Secretary of War, and he addressed his communications relating to the mnatter to Col. Sterling Price, in command of the United States forces in New Mexico. From these communications the following passages are quoted: WAR D)EPAR'TMENT, Ju.ne 11, 1847. SiR: * * * * * * * I am not aware that the President has yet received thle petition for the pardon of Antonio Maria Trujillo, but I have conversed with him, and am now enabled to present his views on that subject. The temporary civil government in New Mexico results from the conquest of the country. It does not derive its existence directly from the laws of Congress or the Constitution of the United States, and the President can not, in any other character than that of Commander in Chief, exercise any control over it. It was first established in New Mexico by the officer at the head of.the military force sent to conquer that country under general instructions contained in the communication from this Department of the 3d of June, 1846. Beyond such general instructions the Presilent has declined to interfere with the management of the civil affairs of this territory. The powers and authority possessed by General Kearny when in New Mexico were devolved on you as the senior military officer on his departure from that country. They are ample in relation to all matters presented to the consideration of the 1President in the communication of the acting governor, Vigil, dated 23d March last, and to you as the senior military officer, or to whosoever is such officer, he will leave such matters without p)ositive or special direction. Your better knowledge of all the 273 facts and circumstances will doubtless enable you to take a wise and prudlent course in regard to them. The insurrection in that department called for energy of action and severe treatinent of the guilty. It was but justice that the offenders should be punished. The safety of our troops and the security of our possessions required it. Beyond what 'was necessary to these ends it is presumed you have not gone, and the President sin-,cerely hopes that the life of Antonio Maria Trujillo may be spared without disregarding them. With this suggestion he leaves the case of Trujillo to your disposal, as he does all others vet under consideration. -X- * * - * ** * Very respectfully, your olbedient servant, W.L. MARCY,,Scretlar? of 1T'.r. Col. STERLING PRICE, Or officer Com)malndiog 1. S. Force.s (it `Smt1fi ]E', V. lMe.. WAR I DEPARTMENT, wlis. ingfon,.hie 26o, 1847. SIR: *X- *X- -X- * * * * The foundation of the civil government in New Mexico is not derived directly front the laws and Constitution of the United States, but rests upon the rights acquired by conquest. I call your particular attention to the fourth paragraph of my letter of the 11th of June as containing the principles on which the temporary government at New Mexico does or should rest. The territory conquered by our arms does not become by the mere act of conquest a permanent part of the United States, and the inhabitants of such territory are not, to the full extent of the term, citizens of the United States. It is beyond dispute that on the establishment of a temporary civil government in a conquered country the inhabitants owe obedlience to it and are bound by the laws which may be adopted. They may be tried and punished for offenses. Those in New 5Mexico who in the late insurrection were guilty of murder or instigated others to that crime were liable to be punished for these acts either by the civil or military authority; but it is not the proper use of legal terms to say that their offense was treason committed against the United States, for to the Government of the United States as the Government under our Constitution it would not be correct to say that they owed allegiance. It appears by the letter of Mr. Blair, to which I have referred, that those in engaged in the insurrection have been proceeded against as traitors against the United States. In this respect I think there was error, so far as relates to the (tesignation of the offense. Their offense was against the temporary civil government of New Mexico an(l the laws provided for it, which that government had the right, and, indeed, was bound to see executed. On two former occasions I have addressed you in regard to Trujillo, who has been convicted of participating in the insurrection and the execution of his sentence suspended, and made known the decided wishes of the President that his punishment should be remitted. Firmness may under some circumstances be required as an element of security to the citizens of the United States and other persons in countries conquered by our arms. When such is the case, it should be unshrinkingly exercised; but when a merciful course can be safely indulged it is strongly comlmended as promising in the end the. best results. Such a course is pronpted by the better feelings of our nature, and, on the ordinary principles of human action, can not fail to promote quiet, security, and 1394-03 18 274 conciliation. I would therefore suggest that this course be adopted in all the other cases not finally disposed of so far as considerations of safety will allow. * * * * -X- * * Very respectfully, your obedient servant, W. L. AMARCY, Secretary of Ti r. Col. STERLING PRICE, Conmmandiig 7United,States Forces, Saita Fe, N. Mex. For the reasons stated in the foregoing correspondence the President declined to exercise the power to pardon vested in him as Chief Civil Magistrate of the United States, but as Commander in Chief of the Army authorized the military governor to use his discretion in the matter, and the prisoner was pardoned by the governor. The events resulting from this insurrection did not escape the attention of Congress. That body on July 10, 1848, passed a resolution calling upon the President for information in regard to the existence of civil governments in New Mexico and California, their form and character, by whom instituted and by what authority, and how they were maintained and supported; also whether any persons had been tried and condemned for "treason against the United States" in New Mexico. President Polk replied to said resolution by message (dated July 17) received July 24, 1848, in which he discusses the character of military government, taking the position that such a government may exercise the "fullest rights of sovereignty." With said message he transmitted the correspondence above referred to, and also a letter received by him from the Secretary of War. In this message President Polk said: The tenmporary governments authorized were institute(l by virtue of the rights of war. The power to declare war against a foreign country, and to prosecute it according to the general laws of war as sanctioned by civilized nations, it will not be questioned, exists under our Constitution. When Congress has declared that war exists with a foreign nation, "the general laws of war apply to our situation," and it becomes the duty of the President, as the constitutional "'Conmnander in Chief of the Army and Navy of the United States," to prosecute it. In prosecuting a foreign war thus duly declared by Congress we have the right by "conquest and military occupation" to acquire possession of the territories of the enemy, and, during the war, to "exercise the fullest rights of sovereignty over it." The sovereignty of the enemy is in such case "suspended," and his laws can "no longer be rightfully enforced" over the conquered territory "or be obligatory upon the inhabitants who remain and submit to the conqueror. By the surrender the inhabitants pass under temporary allegiance" to the conqueror, and are "bound by such laws, and such only, as" he may choose to recognize and impose. "Froml the nature of the case no other laws could be obligatory upon theln, for where there is no protection, or allegiance, or sovereignty there can be no claim to obedience." These are well-established principles of the laws of war as recognized and practiced by civilized nations, and they have been sanctioned by the highest judicial tribuna1 of our own country. 275 The letter from the SecretaryS of W'ar, which accompanied the President's message, was as follows: AWAR DEPARTMENT, l(tsl71/igtOo, JfOlY! 19, 1848. SIR: In compliance with your direction to be furnished with such information as may be in this Department, to enalble you to answer the resolutions of the H-louse of Representatives of the 10th instant, in relation to the civil governmllents in New IAlexico and California; to the appointlnent of civil officers therein and the paymlnelnt of their salaries; to trials for treason against the United States inl New Mexicoo, etc., I have the honor to state that the docmnents from this I)epartment which accolnpaniedl your message to the House of Representatives of the 22d1 of I)ecelnemer, 184G, in reply to a request by that lbo(ly for information "in relation to, the establisllment or organization of civil government in' any portion (of the territory of 3Texico, whllich has been or mlight be taken possession of 1by the Ariny or SNavy of thle United States," contain all the orders anl (tirectionls wichl ha(tl }been issued 1)v thle War I)epartment previous to that time anll all thle information then known here ill regard to the forlm and character of the governmllets establishe(l inl New Mexico, andl California, the authority by \whilch they were estatblished, an(l the appOilltlneIlt of civil officers therein. The documents which accompall! tflis communlication contain all thle illfornaltion on the saine subjects sub)sequently received at this I)epartiment, as well as all tlhe orders and instructions issue(l froml it since the (late of that Ilessage. The governnments in New Mexico alllnd California resultedl fmlll tlle conlquest al(l military occuplation of these territories, and were estal)lishledl by tlme military ofticer in chief comnnamndl. They havp been continue(l by the same autholrity, an(ll whatever chanlges lay have occurred in the office of governor have lbeen gelerallly llad(e by the conllmanding mnilitary officer, without special instructions front this Departmlent. 111 respect to California, instructionls were give t-) (;elleral Kearny to proceel froml New MIexico to that territory; and(, ol hlis arrival, to hlol(l it andll exercise, as far as was necessary, civil functions therein. Col. 1t. B. MIasomsi, of thle First Regiment (of Dragoons, was afterwards senit to take chlief military comnliian(l of that territory wheiinever General IKearnv, who llad leave to return to the L7nited( States, shoul(l withdraw from it; and, as a illncident of sucll conma (l (l, to exercise the (luties of temlporary civil governor, or inake proper arrangemlelts for (civil g\overnment therein. It appears, )by the accomlpanying papers, that Clarles Bent, who ha(l been appointed civil governo-r of New Mlexico by (;eneral Kearlly, was mnurlered( il all insurrection which took place in January, 1847, anli the office of governor, bly that event, was devolved onl Doniciano Vigil, who was secretary of state umller (overnor BIent. The appointment not only of governor h)ut of all the other civil func(tionaries was left to the mnilitary authority, which held thle country as a conquest froin the enelly. There is no other information iii this )eIpartment in relation to the chllanges in the civil officers of either New Iexico or California tlhan such as is (onlltainel ill the documenlts which accompany this communication. It is presumned that the expenses of tle civil governnient in both o(f these territories have been d(efraye(l by revenues raise(l within thle saine. There is nothinig in the documents in the I)epartment, nor have I information froin any other source, to show that the salaries of officers of the civil government in either have been paid fromn the Treasury of the United( States; or that any money has been d(rawn therefrom to dlefray any part of the expenses of the civil government established in them. It appears, by the accompanying documnents, that early in January, 1847, there was an insurrection in New Mexico, (confined to that part of it which lies east of the Rio Grande, and many murders, mostly of American citizens, were perpetrated. By the energetic conduct of our military force it was suppressed; not, however, until after consid(erable loss of life on both si(les. Some of the instigators of it, taken in arms, 276 were executed by the military authority; and others, deeply implicated in the crimes comnnitted, were turned over for trial to a civil triblunal called a "district court of the United States." They were, in form, charged with treason against the United States, cOndemned, and some of thenl executed. In April, 1847, the person acting as district attorney on their trial addressed a letter to the Attorney-General of the lUnited States (a copy of which is among the documents appended hereto), }but it was not received until the latter part of May or the first of June of that year. By tilis letter, it appears that objections were made at the trials, by the accused, to the jurisdiction of the court. It was urged by them that being citizens of Mexico lefore the conquest of the territory they did not becomne thereby citizens of, and consequently could not be guilty of the crime of treason against the United States. These objections were overruled, the trials proceedled and resulted in the conviction and execution of several of the accused. This letter was referred to this Department by the Attorney-General, with a suggestion that he would give an official opinion upon the questions presented, if, as is the legal course, it should be requested, but the error in the designation of the offense was too clear to admit of doul)t, and it is only in cases of doubt that resort can be had to the Attorney-General for his opinion. On the 26th of June, 1847, I wrote to the commanding officer of Santa Fe a letter ta copy of which accompanies this communication), in which the incorrect description of the crime in the proceedings of the court is ipointed out. It is therein stated that "the territory conquered by our arms does not become, by the mere act of conquest, a permanent part of the United States, and the inhabitants of such territory are not, to the full extent of the term, citizens of the United States. It is beyond dispute that, on the establishment of a temporary civil government in a conquered country, the inhabitants owe obedience to it, and are bound by the laws which may be adopted; they may be tried and punished for offenses. Those in New Mexico, who in the late insurrection were guilty of murder, or instigated others to that crime, were liable to be punished for these acts either by the civil or military authority, but it is not the proper use of legal terms to say that their offenses was treason committed against the United States. For to the Government of the United States-as the Government under our Constitution-it would not be correct to say that they owed allegiance. It appears 1y the letter of Mr. Blair, to which I have referred, that those engage in the insurrection have leen procee(ded against as traitors to the lUnited States. In this respect I think there was error, so far as relates to the designation of the offense. Their offense was against the temporary civil goverlnment of New Mexico and the laws provided for it, which that governllent had the right and, indeed, was bound to see executed." No copy or record of the proceedings of the court on these trials for treason has been received at this Iepartmlent. Very respectfully, y our obedient servant, W. L. MARCY, Secretary of JVtr. To tllhe PRESIDENT.' (House Ex. I)oc. No. 70, first session Thirtieth Congress. War Dept. Cong. T)oc. 521.) The situation in New Mexico at that time was as follows: The military government of New Mexico asserted sovereignty over said territory. The government of Texas also asserted sovereignty thereover. A portion of the inhabitants acknowledged allegiance to Old Mexico and a portion to Texas. A portion of the inhabitants acknowledged the authority of the United States resulting from the military occupation, but by far the greater portion of the inhabitants refused such acknowledgment and were attempting to expel the forces of the United States. 277 Attention is directed to the fact that at the time these trials occurred the treaty of peace with Mexico had not been signed, but the United States has always maintained that it acquired title to New Mexico and California by conquest, and not from the treaty. The treaty does not pretend to cede territory; it is a treaty of peace, in which Mexico acknowledged the rights secured by the United States by conquest. The title of the United States commences with the completion of the conquest, and dates from the period when the territory was occupied by the United States military forces. The authority of the military government of New Mexico to institute courts, confer jurisdiction thereon, and prescribe the procedure therein, was recognized and sustained by the Supreme Court of the United States. (Leitensdorfer /,. Webb, 20 How., 17;.) During the Revolutionary war the American colonies, severally, organized State governments. Nearly all, if not all, of these governments enacted laws for the confiscation of the property, l)oth real and personal, of the Toroies and nonreside nt subjects of Great Britain who continued their allegiance to the British Crown. In regard thereto the Supreme Court of the United States say (11 Wall., 312): It is not without weight, that when the Constitution was formed its framiers had fresh in view what hlad been done during the Revolutionary war. Simlilar statutes for the confiscation of property of domestic enemies, of those who a(lhered to tlle British Government, though not residents of Great Britain, were enacted in manv of the States, and they have been judicially determine( to have been justified by the laws of war. They show what was then understoo(t to be confiscable property, and who were public enemies. At least they show the general understanding that aiders and abettors of the public enemy were themselves enelnies, and hence that their property might lawfully be confiscated. It was with these facts fresh in nmemory, and with a full knowledge that such legislation had been common, almost universal, that the Constitution was adopted. It did prohibit e. post.f;tcto laws. It did prohil)it l)ills of attainder. They had also been passed by the States. But it imposedl no restriction upon the power to prosecute war or confiscate eneiny's property. It seems to be a fair inference from the omission that it was intended the Government should have the power of carrying on war as it had been carried on during the Revolution, and therefore should have the right to confiscate an enemy's property, not only the property of foreign enemies, but also that of (lomestic, and of the aiders, abettors, and comforters of a public enemy. Tie framers of the Constitution guarded against excesses that had existed during the revolutionary struggle. It is incredible that if such confiscations had not been contemplated as possible and legitimate, they would have been expressly prohibited, or at least restricted. III. In the absence of Congressional authority, may the military authorities of the United States, engaged in suppressing the insurrection in the Philippines, confiscate property found on land, which property belongs to individual insurgents? During the period of actual hostilities the commander of a belligerent 278 force maintaining mliltary occupation possesses a large and extraordinary power. Such rule is an element of the jus helli. The commander of the occupying army rules the territory within his militarv jurisdiction as necessity demands and prudence dictates, restrained by international law and obligations, the usages and laws of war, and the orders of his superior officers or the government he serves and represents. (Honsard's Parliamentary Debates, 3d ser., vol. 95, p. 80. Op. Atty. Gen., vol. 8, p. 369.) A military government, used as a means for promoting the purposes and endeavors of active hostilities, is subject only to such conditions and restrictions as the laws of war impose upon it. As was said by the Supreme Court of the United States, such govclrnmlent — mlay do anything necessary to strengthen itself and weaken the enemy. There is no limlit to the plowers that may be exerted in such cases save those which are found in the laws and usages of war. * * In such cases the laws of war take the place of the Constititution and laws of the United States as applied in time of peace. (New (rleans r. Steamship Co., 20 Wall., 394.) Colnlelliting on this view of the law, the Texas supreme court say: This language; strong as it may seelm, asserts a rule of international law, recognized as applicable during a state of war. (Daniel r. IIutcheson, 86 Tex., 61.) The war in the Philippines continues to be one of active hositilitiesaYrfl/,inte bell,, or, at least, non cessante bello. The conduct of such war devolves upon the President as Commnander in Chief of the Army and Navy. Bennett's Edition of Pomneroy's Constitutional Law, says: Wheni actual hostilities have commenced, either through a formal declaration made by Congress, or a belligerent attack made by a foreign government which the President must repel by force, another branch of this function as Commander in Chief comes into play. He wages war; Congress does not. The legislature may, it is true, control the course of hostilities in an indirect manner, for it must bestow all the military means and instruments, but it can not interfere in any direct manner with the actual belligerent operations. Wherever be the theater of the warlike movements, whether at home or abroad, whether on land or on the sea, whether there be an invasion or a rebellion, the Iresident as Commander in Chief must conduct those movements; he possesses the sole authority and is clothed with the sole responsibility. (Sec. 706, p. 591.) The same author further says: This military law, or in other words, this code of positive, enacted, statutory rules for the government of the land and naval forces, is something very different from martial law, which, if it exists at all, is unwritten, a part and parcel of the means and methods by which the Commander in Chief may wage effective war, something above and beyond the jurisdiction of Congress, for that body has no direct authority over the actual conduct of hostilities, when war has been initiated. (Sec. 469, p. 383.) Chief Justice Chase, in the minority opinion in ex parte Milligan, said (4 Wall.. 139): Congress has the power not only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carrying on war. 279 This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as inte:feres with. the coicmmand of the forces and the conduct of caimpaigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. The power to make the necessary laws is in Congress; tle power to execute in the President. Both powers imply many subordinate anl auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor CCngress 'upon the proper atuthority of te Pl'resident. In expressing his individual views in Biown i'. United States (8 Cranch, 152) Mr. Justicc Story said: The act declaring war has authorized the Executive to employ the land and naval forces of the United States to carry it into effect..When and where shall he carry it into effect? * * * Upon what ground call he authorize a Canadian campaign or seize a British fort or territory and occupy it b)y right of capture and conquest I am utterly at a loss to perceive, unless it. be that the power to carry the war into effect gives every incidental power which the law of nations authorizes and approves in a state of war. Continuing the discussion. Justice Story says (pp. 153, 154): My argument proceeds upon the ground that when the legislative authority, to whoim the right to declare war is confided, has declared war in its most unlimited manner, the Executive authority, to whom the execution of the war is confided, is bound to carry it into effect. He has a discretion vested in himn as to the manner and extent, but he can not lawfully transcend the rules of warfare established among civilized nations. He can not lawfully exercise powers or authorize proceedings which the civilized world repudiates and disclaims. The sovereignty as to declaring war and lilniting its effects rests with the legislature. The sovereignty as to its execution rests with the President. If the legislature do not limit the nature of the war all the regulations and rights of general war attach upon it. The rule is that private property on land may be confiscated when the necessities of the military operations require such action. Who is to determine the question of necessity? In Mrs. Alexander's Cotton (2 Wall., 404) the court say: Being enemies' property, the cotton was liable to capture and confiscation by the adverse party. It is true that this rule, as to property on land, has received very important qualifications from usage, from the reasonings of enlightened publicists, and from judicial decisions. It may now be regarded as substantially restricted " to special cases dictated by the necessary operation of the war," and as excluding in general " the seizure of the private property of pacific persons for the sake of gain." The commanding general may determine in what special cases its more stringent application is required by military emergencies, while considerations of public policy and positive provisions of law and the general spirit of legislation must indicate the cases in which its application may be properly denied to the property of noncombatant enemies. All departments of the military government of the Philippines are to be considered as instruments with which a belligerent is waging a war. Therefore its courts, as well as its cannon, may be used to 280 weaken its enemy and strengthen itself. If confiscation is resorted to as a military measure, the commander of the belligerent force having used its soldiers to capture property may use its courts to condemn such captures. Both agencies are instruments of actual war. The case of Brown v. United States (8 Cranch, 110) does not apply to the situation in the Philippines, as understood by the writer. In that case a private citizen of the United States, in no way connected with the military establishment and without authorization from the military authorities, seized private property alleged to belong to an individual enemy, and sought the assistance of a court of admiralty to condemn said property as prize of war, pursuant to the provisions of the laws regarding prizes captured at sea. The court sustained an objection to the jurisdiction. In delivering the opinion of the court, Mr. Chief Justice Marshall said (pp. 122, 123): Respecting the power of government no doubt is entertained. That war gives to the sovereign full right to take the persons. and confiscate the property of the enemy wherever found is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but can not impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation the judicial department must give effect to its will. But until that will shall be expressed no power of condemnation can exist in the court. The Chief Justice further said (pp. 121-122): It does not appear that this seizure was made under any instructions from the President of the United States; nor is there any evidence of its having his sanction, unless the libels being filed and prosecuted by the law officer, who represents the Government, must imply that sanction. On the contrary, it is admitted. that the seizure was made by an individual, and the libel filed at his instance by the district attorney who acted from his own impressions of what constituted his duty. All parties to that action conceded that Congress alone could invest the courts of the United States with jurisdiction to hear and determine confiscation proceedings. The contention of the libellant was that, by the passage of the act declaring war against England, Congress had thereby declared that confiscation of enemies' goods on land was as permissible as confiscation of such goods on the sea, and the court had the same jurisdiction over goods confiscated on land as was conferred by the "prize laws" of Congress regulating the seizure of goods on the sea, and that a private citizen of the United States was thereby authorized to make the seizure and maintain condemnation proceedings in the courts. The issues were stated by the court as follows (p. 123): The questions to be decided by the court are: First. May enemy's property, found on land at the commencement of hostilities, be seized and condemned as a necessary consequence of the declaration of war? Second. Is there any legislative act which authorizes such seizure and condemnation? 281 Since in this country, from the structure of our GCovernment, proceedings to condemn the property of an enemy found within our territory at tile declaration of war can be sustained only upon the principle that they are instituted in execution of some existing law. And again, the court say (p. 126): The acts of Congress furnish many instances of all opinion that tle declaration of war does not of itself authorize Iroceedligs against the persons or property of the enemy found at the time within the territory. Evidently the "proceedings' referred to were proceedings in the civil courts of the United States. The holdilng of the court was that before the civil courts of the United States call assume jurisdiction, at the instance of a private citizen, to condemn the private property of an individual enemy seized on land by a private citizen of the United States, it is necessary for Congress to confer such jurisdiction and authorize private citizens to invoke it; and that the act declaring war against England did not confer such jurisdiction or authority, and the existing laws known as ' prize laws" applied only to captures at sea. IN THE MATTER OF TRANSMITTING OVER THE TELEGRAPH LINES OPERATED BY THE MILITARY GOVERNMENT OF CUBA MESSAGES RECEIVED FROM OR DESTINED FOR POINTS IN THE UNITED STATES, VIA HAITI AND SANTIAGO DE CUBA. [Submitted July 93 1901. ('se No. 2105, I)iisiol of Insulair Affairs, \War J)epartienlt.] SYN(OPSIS. 1. Examination of the conflicting claiims asserted by the International Ocean Telegraph Company, the Cuba Submarine Cable Company, and the French Cable Company, regarding their relative and respective rights under the several concessions granted saidt comipanies by the Government of Spain. 2. The Spanish concession to the Cuba Submarine Cable (Company appears to confer upon that company the exclusive privilege of transmitting private telegrams passing letween Santiago (le Cuba, Cienfuegos, Batabano, and the central station of Habana. 3. Said concession does not curtail the right of tle (Government to send Government messages between said designated points over tlhe telegraph lines of the Spanish Government, nor to grant concessions for telepraph lines to points in Cuba which will not connect any two of the places reserved to the Cuba Submarine Cable Company. 4. The exclusive privilege conferred by the Spanish concession to the International Ocean Telegraph Company is confined to the exclusive right to ground in the coastal waters of Cuba any telegraph cable the other end of which is attached to any point in the United States. Otherwise than results from this grant the Government of Spain did not undertake to limit or control the international right of the United States to communicate with the island of Cuba. SIR: I have the honor to acknowledge your request for a report on a matter arising as follows: The International Ocean Telegraph Company maintains and operates a cable between the United States and Cuba. This company claims 282 the exclusive right of telegraphic communication between the United States and Cuba continuing until January, 1906, by virtue of a concession from the Spanish Government, granted by royal decrees dated December 5, 1866, and May 13, 1867. The Cuba Submarine Telegraph Company maintains and operates a submarine cable along the southern coast of Cuba, reaching from Santiago to Cienfuegos, and thence by land line to Habana. The original concession (December 31, 1869) embraced but three points, Santiago, Habana, and an intermediate mooring to be selected by the company, at one of three places, to-wit: Cienfuegos, Bay of Cochinos, or Bataban6. The company selected Batabano for the third mooring, but soon thereafter sought authority for a fourth mooring to be effected at Cienfuegos. This was at first denied (April 9, 1870), then granted (July 10 and October 13,1874), and revoked (August 6,1876). Meanwhile the company had completed the mooring at Cienfuegos, and the decree of revocation declared this fourth contact would be tolerated as a special grace. Subsequently (September 30, 1895) the Government of Spain granted to the Cuba Submarine Company a concession for the establishlment and operation of submarine cables connecting Cienfuegos with Manzanillo, Cuba, and touching at the towns of Casilda, Las Tunas, Jiicaro, and Santa Cruz, these cables connecting at Cienfuegos with that established from Santiago to Habana. The French Cable Company maintains and operates a cable from Havti to Cuba, landing at Santiago under a concession granted by the Spanish Government dated April 1, 1887. The United States and Hayti Telegraph and Cable Company maintains and operates a cable from New York City to Hayti. All said cables were constructed and operated prior to the American occupation. The Signal Service Corps, United States Army, reconstructed the overland telegraph line between Santiago and Habana, which line is now being operated by the military government of Cuba as a common carrier of telegraph messages. The lines of the United States and IIayti Telegraph and Cable Company and the French Cable Company are now operated in conjunction and transmit messages between New York and Santiago, Cuba, via Hayti. On arrival in Santiago, Cuba, messages destined for Habana or elsewhere in Cuba are tendered to the persons in charge of the overland telegraph line, operated by the United States military authorities, by whom they are accepted and transmitted upon payment of the rate charged the general public. The International Ocean Telegraph Company and the Cuba Submarine Telegraph Company separately complain that said practice constitutes an infringement of the terms of the concession granted tile French 283 Cable Company and also a violation of the concessionary rights of each of complainants. The first thing to be ascertained is: What is the specific act of the government of Cuba of which complaint is made? This is to be answered: The action permitting the overland telegraph line from Havana to Santiago to be used as a common carrier of messages passing between points in the island of Cuba and points in the United States, via Santiago and Hayti, over the lines of the French Cable Conlpan'y. The next inquiry is: What action by the government of Cuba is requested by complainant? This inquiry is to be answered: To refuse transmission over said land telegraph line to messages received from or intended for points in the United States via Hayti over the French cable. Realizing that the Secretary of War would desire to be advised as to how the relative and respective rights of these cable companies were regarded and treated under Spanish sovereignty, careful examination has been made of all available means of information on that subject. The investigation induces the belief in the mind of the writer that while Cuba remained under Spanish sovereignty the Spanish Government might properly permit the French Cable Company1. To transmit frolm Hayti to Santiago de Cuba over its cable nlessages from the United States arriving in Hayti over the United States and Hayti cable. 2. To transmit from Santiago de Cuba to Hayti over said ca}le any message delivered to the Santiago office of the French Cable Company for transmission to the United States via Hayti and over the United States and Hayti cable. 3. To use the Government overland telegraph lines to transmit messages received in Santiago over the Hlayti and Santiago cable, destined for any point in Cuba excepting Habana, Cienfuegos, and Batabano. 4. To use the Government overland telegraph lines to transmit to Santiago de Cuba messages originating in Cuba and destined for points outside of Hayti, provided such messages were sent from a station on said overland lines other than Habana, Cienfuegos, and Batabano. Whether it was the practice of the Spanish Administration in Cuba to permit the French Cable Company to exercise said privileges is a question of fact not clearly and conclusively established by the documents filed herein. That the Secretary of War may secure such information as the examination made affords, the following is submitted. To support their complaint and request for relief, the International Ocean Telegraph Company and the Cuba Submarine Telegraph Company appeal to the treaty of peace (Paris, 1898) and the concessions granted by the Government of Spain. 284 The provisions of the treaty of peace invoked are those set forth in Article VIII, as follows: That the relinquishment * * * can not in any respect impair the property or rights which by law belong to the peaceful possession of property of'all kinds, of * * * or any other associations having legal capacity to acquire and possess property in the aforesaid territories. The Secretary of War is relieved from the responsibility of determining whether or not such rights as are actually granted by the Spanish concessions involved herein are property rights, for the Attorney-General, with reference to the concession to the International Ocean Telegraph Company, has advised the Secretary of War thatConcessions of this kind, which carry with them exclusive rights for a period of years, constitute property of which the concessionary can no more be deprived arbitrarily and without lawful reason than it can be deprived of its personal tangible assets. In a case in the Supreme Court of the United States (1 Wall., 352) Mr. Justice Field said: " The United States having desired to act as a great nation, not seeking, in extending their authority over the ceded country, to enforce forfeitures, but to afford protection and security to all just rights which could have been claimed from the Government they superseded. If, therefore, the Western Union Telegraph Company has an exclusive grant applicable to Cuba for cable rights, which grant has not expired, it would be violative of all principles of justice to destroy its exclusive right by granting competing privileges to another company." (22 Op., 518.) The necessity continues for the Secretary of War to ascertain if the grant of cable rights under consideration is exclusive. Such ascertainment is not a judicial determination of the question involved, its purpose being to enable the Secretary to intelligently exercise his authority in a matter wherein that authority has been invoked, to the end that the government of Cuba, by omission or commission, shall not participate in what the Attorney-(General holds "would be violative of all principles of justice." The International Ocean and Telegraph Company bases its claim of exclusive privileges on the following provisions of the concession under which the cable was constructed: ARTICLE 1. The grant that on the 19th of last June was temporarily given by a royal decree to Mr. William Smith, representative of the Telegraphic International Oceanic Company, to fix in some point of the island of Cuba the end of the telegraphic submarine cable, which has to start from the coast of Florida in the United States, is now given with a definite character and for the term of forty years for the placing of the cable or cables, which starting from the States of the Union, end in the said island of Cuba, provided that during the same period of time the United States Government does not deprive them of the exclusive grant allowed them. (See Doc. 3, No. 2105, Div. Ins. Affrs.) The grant made by said royal decree was subsequently modified by royal decree dated May 13, 1867. Therein it was decreed as follows: Considering that in this respect article 1 of above-named decree of 5th December, 1866, should be complied with, that in no case the term of duration of grants made, referring to the cables of Cuba to Porto Rico and to the Canaries, and to Mexico, 285 Panama, and the South American coasts, should exceed the permission granted to the International Ocean Telegraph Company, I decree as follows:,ARTICLE 1. The pernlission to land on the coasts of the island of Cuba the submarine telegraphic cables referred to b)y article 1 of the decree of 5th of December, 1866, will be reputed as a final grant made to the International Ocean Telegraph Company for the term of forty years, subject to the terms estal)lished in the second condition of schedule of terms for bidders on sale of said grant authorized bly decree of samle date, 26th February last. (See (;(ctet (le Mladrid, May 17, 1867.) The "second condition," to which reference is made in the decree above quoted, is as follows: The company will make use of the telegraphic lines during forty years, the (Government making no other grants during this time for the establislhment. of parallel lines. After the expiration of said term the Governmlent will be free to accord permissions for new landings solicited, the company continuing in the enjoyment of the use of their line. For the ends of this article parallel lines will be such that starting from Cuba and Porto Rico will have submerged cables running approximately in the' same direction. (See Gaceta de Madrid, Feb. 28, 1867.) The International Ocean Telegraph Company insists1. That by said provisions it was granted, for a period of forty years, the exclusive privilege of telegraph cable traffic between Cuba and the United States, passing over cables running approximately parallel to the lines operated by it. 2. That the French cable and its New York connection bv means of the United States and Hayti cable constitute such parallel line. 3. That the French Cable Company, by the terns of the Spanish concession, dated April 1, 1887, under which its cable was constructed, is prohibited from engaging in the United States traffic. The Spanish concession granting permission to the French Cable Company to land its cable in Cuba contains the following provisions: ART. 8. The concession is strictly limited to Hayti, so that there may be no infringement of the privileges conce(ded to the "International Oceanic" and " West India and Panama " Companies. ART. 9. It is an express condition that if the concessionaire be desirous of extendling the communication to another or to other points, lie may not (o so without obtaining the previous authorization of the Spanish Government. DETERMINATION OF THE QUESTIONS INVOLVED HEREIN BY TIlE SPANISH MINISTRY IN 1889. Upon examination it appears that the question of the right of the French Cable Company under its concession to engage in traffic with points in the United States and other points outside of Hayti, was raised in 1888 when said cable was being constructed. The British consul at Habana, acting for and on behalf of the International Ocean Telegraph Company, the West India and Panama Cable Company, and the Cuba Submarine Cable Company called upon the Spanish administration in Cuba to prevent the landing of said cable in Cuba; basing said demand upon the averment that if con 286 structed as projected said cable would enable its operators and owners to make arrangements or connections with overland telegraph lines in Hayti and Santo Domingo, and thereby reach the cable landed in Santo Doningo and extending therefrom to points reserved to the three English companies by prior and existing Spanish concessions. The questions involved in the proposition advanced by the British consul at Habana became the subject of numerous diplomatic inquiries and an extended correspondence between the Governments of Spain, England, France, Hayti, Santo Domingo, Venezuela, and other South American countries. The controversy was eventually determined by the Spanish department of communications at Madrid, which determination was promulgated by royal decree issued by the Minister of Colonies on January 27, 1889. (See Gaceta (de Iaran a, March 12, 1889.) As evidenced by said decree, the Spanish authorities at Madrid determined1. That the concession granted by the Government of Spain to the International Ocean Telegraph Company conferred the right to attach to sonie point in Cuba one end of teleg'raphic submarine cable or cables, the other end of which attaches to the United States, and to maintain and operate such cable for forty years. 2. That by said concession, as declared -by the decree of February 2G, 187,)T the Government of Spain bound itself to make no grants for the establishment of parallel lines during a period of forty years. 3. That the concession granted by the Government of Spain to the French Cable Company conferred only such rights as the Government of Spain could grant without infringement upon the prior rights secured to the International Ocean Telegraph Company. 4. That if constructed as projected, the line of the French Cable Company would not touch any point in the United States, and therefore could not be considered as parallel to that of the International Ocean Telegraph Company. 5. That in order to extend said cable so at-i to connect Cuba and the United States therewith, it would be necessary to secure authority so to do from the Government of Spain, which requirement afforded adequate protection to existing rights. t(. Therefore, the demand that the construction of said cable, as projected by the French Cable Company, be stopped, was refused. The decree also considers the controversy regarding the right of the French Cable Company to engage in traffic with points beyond Hayti. This right was challenged before the cable was constructed, and at the time the effort was made to prevent the laying of the cable. With reference thereto the decree of January 27, 1889, states: The British consul in Habana complains that the French company is transmitting telegrams to the said island to the prejudice of the British companies which enjoy privileges granted by Spain, as messages go over said cable addressed to countries 287 included in the concession granted to the West India Company, and in Santiago de Cuba they are resent to Europe * * * through its employees * * * and he requests therefore that the transmission of correspondence received in Santiago, as a stopping place, from or to points beyond Hayti, be not permitted. That by a royal order of September 8 of the present year it was ordered, that until this section should render the reports requested of it, the superior authority of the island and his delegates should exercise surveillance over the service of the cable in question for the purpose of preventing that it present for transmission in the offices of other companies, under the guise of messages from Santiago de Cul)a, those which proceed from points beyond Hayti, and that no direct nor indirect violation of the conditions stated in their concession be allowed. At the time the controversy was considered at Madrid (January, 1889) the United States and Hayti cable was not constructed. The only cable connection between Cuba and the United States was the line from Florida to HIabana, owned by the International Ocean Telegraph Company. If the French Cable Company received a message from any source for transmission to the United States, it was obliged to turn over said message to the International Ocean Telegraph Company, or its auxiliary, the Cuba Submarine Cable Company. Therefore the Spanish authorities considered that the International Ocean Telegraph Company had no occasion to complain. At that time (January 27, 1899) the cable between Venezuela and Santo I)oiingo was in operation, and the French Cable Compan-y by arrangements therewith was engaged in traffic with the countries of Central and South America. The West India and Panama Cable Company held at concession from the Government of Spain for the construction of cables between Cuba and these countries, which, that company contended, gave it the exclusive privilege of engaging in the Cubtan-South American traffic. The British consul in IHabana, for and on behalf of said W\est India and Panama Cable Company, called upon the Spanish administration to prohibit and prevent the French Cable Company froml engaging in traffic between Cuba and South America b)y using said independent cables. In defense of its action in engaging in the traffic of South America, the French Cable Company called attention to the fact that, by the action of the Government of France, the cable fronm Haiti to Cuba had been declared an international line, and subject to the rules prescribed by the international agreement concluded at St. Petersburg July 10, 1875, to which agreement both France and Spain were parties; that said agreement provided as follows: ARTICLE XXX, PAR. 3. No office, after being called, can decline to receive telegralms presented to it, whatever be the destination. In cases of obvious error, however, the transmitting bureau is bound to correct it as soon as it is notified by the corresponding bureau through a service notice. It appears to the writer that the controversy in 1889 between the West India and Panama Company and the French Cable Company arose from a similar condition of fact, and presented the question 288 involved in the existing controversy between the International Ocean Telegraph Company and the French Cable Company. The decree of January 2T, i889, disposes of the claim and demand made by the West India and Panama Company as follows: As has been stated in the introduction to this report, the concession of the cable between Cuba and Haiti contains two restrictions: "It is limited strictly to Haiti," according to clause 8, in order that the privileges granted to the International Oceanic and the West India Panama companies be not violated; and by the 9th it is prescribed "That if the concessioner should desire to extend communications to one or more other points he can not do so without first obtaining authorization therefor from the Spanish Government." It was furthermore declared by clause 19 that said cable was subject to the rules established in the international convention of St. Petersburg, as well as to any others to which Spain may have been appointed. The concessioner comlplied with these conditions; and the cable is moored at San Nicolas, of Hayti, without having been extended to any other point, and without touching, therefore, any points which were reserved by the Spanish Government to the British companies, according to official reports and other data which appear in the proceedings. If Venezuela, the Netherlands, Santo Domingo, and Hayti have established, for the protection of their own interests, telegraphic cables and overland lines connecting La Guaira, Curacao, Puerto Plata, and San Nicolas, and utilizing for communication with the United States and Europe the cable of Hayti to Cuba, the only line at present in service for said purpose, Spain must respect acts of sovereignty of friendly nations and not object to the transmission over said cable of messages from said points or to the same, complying with the convention above mentioned, according to which the contracting parties recognize to each individual the right to correspond by means of the international telegraphs, reserving the right to detain such messages which are included in the cases mentioned in No. 7. Apparently the Spanish authorities considered that international communication involved rights appertaining to each nation affected; and that an exclusive privilege of controlling international comiilunication could be secured only 1b the affirmative action of the several nations whose rights were involved. From this it followed that Spain could not control the passing of messages from one end to the other of an international cable, once the message was received into the hands of the cable company, excepting, of course, the exercise of the right to prevent the transmission of messages inimical to the State and the powers arising from the condition of war. But it did not follow that Spain was precluded from controlling the means of distributing, in Spanish territory, by telegraph, any and all messages received over cables grounded in Spanish territory, or of communicating to the office of the cable company messages whicn starting from points in Spanish territory, sought to reach said cable by telegraphic wires subject, in their entire length, to Spanish authority. This proposition also was considered in the decree of January 27,1889. The question was presented by the complaint of the British consul at Habana, made on behalf of the Cuba Submarine Telegraph Company. That company had secured a concession from the Government of Spain 289 authorizing it to lay a submarine calble around the island of Cuba, touchilig at various points, as hereinbefore stated. The Governlment of Spainl bou-nd itself not to grant to i(ndividuals or associations a concession for either overland or sulbmarine telegraph lines touchlling the points reserved to the Cuba Submlarine Company. The Goverlnment continued to have the right to construct Governmlent lines to all parts of the island, includiig'i those reserved to the Cu1ba Submalrine Company. and to grant concessions to individuals or associations for the construction of lines connecting points in the island, other than those reserved to the Cuba Submarine Company, with each other or with aly one of the points reserved to the company. In the exercise of the right so reserved, the Spanish G(overnment constructed tan overland telegraph system connecting various towns in the island, among others IIabana and Salltiago. The French Cable Comlpany soug'ht to use said system of overland telegraph lines to distribute messages origiating outside of HIati 'and arrivig at Salltiwago over\ the French cable, llld to collect andl transmit to its,Salltiago) office messages originatinl in Cuba and destined for i)oints, outside of Hlavti. The Cuba Sul mtarine Cabtle Compal-ny insisted tlhat such use of tile (overnment teleglraph lines in C(tuba )y tlhe French Cabtle Company was a violattion of the rights of the (tCuba Submariine Colmpal y and tlhe obligations of the Grovernment of Sl)ain. The question tllhs raisted was1, What use, if any, may be made 1by the French Cable ('ColpanyI of the Spanish Government telegraph lines in lCuba? Wit reference thereto said decree. of January 27, 1SS9, sets forth tlhe following: The latter company (Cuba Submarine) was aiuthoriiztel o:1 December 31-, 1869, by a decree of the provisional government, to estal)lish a!o(l ioecrate a sulmarine cablle to connect the city of Santiago (te Cuba with Ilabana, to:'cling at Cienfuegos, the Bay of (ochinos, or Bataban', as it may see lit. Tlhe route of t!le sai(l cablle, according to article 2 of the concession, shall start fromll the Blay of Santiago (de Cuba, continue along the southern coast of the island to the mno(,ring point whiich may be selected fromn among the three aforementioned, shall connlect withl an overland line siimultaneously established by the concessioner, whicl latter liie shall terninate in the cenitral station of IIabana. The Government slill not gramt to aly person or private c(mipany permission for the establishment of another overland or submarine line col('necting Santiago de Cuba, the landing point of tlis cable, andl the central office of Ilabana, the only three points of contact which this line will have in the territory of tile island, and over which telegramss of a tprivate character only shall be transnmtitte d. 0(- -X -X- % '- -iAccording to the explicit terms of this concession the Cuba Submarine Company has no other privilege than that of operating the cable granted, without any other person or company being permitted for a period of forty years to connect with each other, by overland or submarine lines, tle points indicated in the concession, viz, the city of Santiago de Cuba, the intermediate mooring point, and the central station of I-abana. The concessioner selected Batabano as the third point of the island where the cable was to land, but soon thereafter authorization was requested to touch also at Cienfuegos and establish there a telegraph station, which was alter1394-033 19 290 nately denied and granted by royal orders of April 9, 1870, July 13 and Octoler 10, 1874. But the Government did not adhere to these resolutions, and by royal decree of August 6, 1876, it was declared that the royal orders mentioned did not produce any legal effect, as they altered many of the essential bases of the concession, but that as a special grace, and in consideration of the fact that the cost of the cable and its landing at Cienfuegos had already been defrayed, this fourth point of contact with the island would be tolerated as long as the Government or the Governor-General of Cuba would consider it advisable. But the Government always retained the privilege of establishing for its service lines parallel to the latter, and to grant the establishment and operation of others which, starting fronm points other than those indicated in the concession and royal decree which extenle(l it, may touch some of them without placing them in communication with each other; that is to say, that from any point in the island not touched by the cable of the Cuba Submarine Company telegraph lines may be laid to the city of Santiago (de Cuba, or to Cienfuegos, or Bataban6, or to I-abana. The conclusion reacheld by the authorities at Madrid on the several subjects under consideration is set forth in said decree, as follows: But as the administration has not the power of imposing upon the concessioner of the cable between Cuba and Hayti more obligations than those established in the contract, these are the only ones which are to be examined in connection with the privileges which the other comnpanies invoke, in order to decide whether said cable can or can not, in accordance with the international convention above mentioned, transmit messages from points beyond the extremes of its line. Reassuming what has been stated, therefore, the Section is of opinion: 1. That the International Oceanic Company only obtained an exclusive power for forty years to lay and operate submarine telegraph cables between the United States and Cuba, which privilege has not up to the present time been violated by the cable of Cuba to Hayti, as this line can not transmit messages from and for the United States unless they pass over the cables of said company. 2. That the West India and Panalna Company was authorized by a royal decree of May 28, 1868, and by the document of conditions of the same (late, to establish and operate for forty years telegraphic cables between Cuba and Porto Rico, and between Cuba and Mexico, and Panama and the coasts of the South American continent, and that, not having complied strictly with the conditions of the contract as stated in the body of this report, it behooves Your Excellency to decide whether the case has arrived to reestablish the force and vigor of the original decree of concession, the only one which regulated in due form the juridical relations of the administration and of the company, and to declare that the royal orders which may have altered the essential bases of the concession did not produce any legal effect, as was (lone in a similar case, in concurrence with the Council of State in full, by royal decree of August 6, 1876, which was confirmed by a royal decree decision of July 6, 1878. 3. That until the privilege invoked by the West India Company is repealed or declared to be forfeited the latter only has the right to prevent the laying and operation of telegraphic cables between Cuba and Porto Rico and between the former and the other points mentioned in the concession, except in Mexico, which line was gianted on August 1:3 last to Mr. Augustus Ghirlande. 4. That the Cuba Submarine Company has the privilege for forty years of no other company or private individual placing in telegraphic communication overland or by water the four points indicated in the concession and the royal decree which extended it, which are the city of Santiago (de Cuba, Cienfuegos, Bataban(, and the central station of Habana, by establishing parallel lines which communicate them with each other; but it can not be prevented that a cable which reaches the coasts of Cuba communicate with Habana or any other place of the island, provided that it does not touch at Santiago nor at any of the mooring places reserved to the Cuba Submarine 291 Company..5. That the concessioner of the cable of Cuba to I layti hias confoIrncd to the present time, as it appears froin the p)roceedings, to the conditions' of thle concession, as said cable (lees not (o bevonI flavti, and as the latter is an international telegraphic line, subljectedl by the Gorvernment, itself to the convention at St.. lPeter'sburg, it is not possible, without acting in contravention thereto andi without injuring legitimate interests of friendly nations, to lprevent that there lhe transinittedl over thie line mentioned anyi uumesseages from Joints bevond its two terminal statiomns; therefore the d(1(fitite ol-pe iog of th(? scwoe to outerooieoei rerrice shoold be (mtthor/Zed cat moce nwd i)erhmiossioi Ibe f/rooted for its comiroooication 'with the oreranid teleqreph Ioris which' the Gorero in rot malY hore e,4telished in piecets hich erir rot rrsserrdi bY 'its coiw,,nresioo to the Cub(e Stbmi(trime ( C')iO]Oip. I am unable to find any sutbsequent decrees relating to said matters issued by the authorities- at Madrid. It therefore appears to the -writer: First. That under the terms of the Spalnish concession to the International Ocean Telegraph Company, as constrtled by the Spanish authorities, that company is without the right to olject to the ulse of the Government overland telegraph lines in Cuba for the tran'smission of messages received by, or intended for, the French cable groundedl at Santiago, whatsoever their place of origin or destination, since the exclusive privilege granted by said concession is that of "' placing' in Cuba a telegraph cable, the other enid of which is 4' placed" in the United States. Second. That under the terin,is of the Spanish concession to the Cuba Submarine Telegraph Company, as (;onstrited biv tim Spanish au111thorities, that company has the right to object to the use of the Government overland telegraph lines in Cuba for the trtatnsmission of messages received by the French cable ait Santiago afind destined for the central station at Hlabana, or Cienfuegos, or Bataban6.), and also to object to the transmission over Giovernmnent telegrraph lines of 11messlagres originating in any of said places and destined for points outside, of iayti over the French cable. Further proceedings relating to the controversyS were hatd under Spanish sovereignty, as follows: The royala decree of November 25, 18!.), p1rovidled for auitonomlouis government in Cuba. By said decree there wvas conferred upon the local,administration of the autonomouts government "exclusive cognizance of all matters of a purely local nature, which may principally affect the colonial territory." Prior to February 4, 1898., the authorities in Cuba had forwarded to Madrid various protests presented to them on behalf of the International Ocean Telegraph Company and the Cuba Subtitmarine Telegraph Company against the attempts of the French Cable Company to engage in cable traffic between Cuba and points outside of Hayti. On Februarv'4, 1898, the Mladrid authorities referred the matter to the autonomous government of Cuba for. determination, as being within the 292 jurisd(iction conferred by the decree estallishing that government. rThis reference waLs colmmunicated to the governor-genleral of Cubtta by an order of the Ministry of the Colonies, dated February 4, 1898, and numbered 2)0. The matter being thus returned to the authorities in Cula, the governor-general on March 1, 1898, referred it to the Secretary of Public Works and Colnmunicattions,by a communlication as follows: 1By the Ministry of the Colonies it is communicated to His Excellency the governorgeneral, (latel February 4 (1898), andl unller No. 260, the following: O()YAL O(ll)ER TO 1HIS EXCELLENCY. In view of the official letters from Your Excellency, Nos. 693, 696, and 1096, of 28th of June, 7th of Septembler, and 7th of October last, forwarding with the first copy of the romeedings with occasion of petition of the rerepresentative of the International Ocean Telegraph ('omlpanyl alnd the Cuba Submarine Telegraph Complany, in which he claillls privileges that lie believes to correspond to tlie sail compllanies regarding tlhe trafic of callegraphic correspondence between that island, the United States, and Europe, and tllat lie regards violated with tlhe circulation of that correspondence lby the route establisheld by the French Company between Santiago de Cubalandl IIati, and witli thle second and third letters copies of the proceelings regarding the tariffs of tlme French cables, and touclling on matters that iinvolve no other solution but that of alhering to what is settled in the legal dispositions an(l existing contracts conllnunicated of royal or(ler by thle 5Minister of the Colonies, I have the honor to say to Your E 1xcellencv that the proper action be taken by tlhe insular government regardling thlie said matter. The papers that were attached to tlhe said official letters are not returnedl, 1 ecause they are only copies, and their originals must be in the corresponding o(lice of that island. Its accomplislhment.being agreed to by His Excellency on February 24 last, I have the honor to refer it to Your Excellency for your knowledge and wlhat may correspon(l. God save Your Excellency many years. 1Iabana, 5March 2, 1898. J(OSE CoNGo(SO. T}le( SECRETAIiY OF PUBLIC WORKS AND COMxI'NICATI()NS. Purstuant to such reference, the Secretary )of Public Works and Communumications for the islanld of Cuba, onl April 1, 1898. (letermined the matter as follows: [Secretaryship of l'ubli Works and (Clmmunications of the island of Cuba.-No. 393.] Yolmt EXCELLENCY: By the roval order, No. 260, of February 4 last it is directed that )by tlhe insular government be a(lopte(l the correspon(ling resolution regarding the claim madle by Your Excellency in behalf of the International Ocean and Cuba Submarine Cable comnpanies, regarding the privileges correspon(ding to the same about tlhe telegraphic correspIon(lence between this island and( the United States and Europe, which privileges are considered violated with the circulation of that correspoi(dence by the route established by the Fren(ch Company between Santiago (le Cuba and Htayti. In the compliance of these privileges and having in consideration the legal dispositions and contracts in force: Considering that the International Ocean has a privilege granted for forty years to receive and to transmit the correspondence for the United States and Europe, and that the Cuba Submarine enjoys the same privilege to connect the northern and southern cables of this island, through which the correspondence in transit must pass; and considering also that the West India and Panama is in the enjoyment of the same advantage and for the 293 same tiimne to place this island in commlunication with the West Indies and Panama and places ill the South American continent where it should have estal)lishle(l (,onmnunication, His Excellency the Governor-General, by resolution of this date and1 with the concurrence of this office, has dlecide(l to resolve: That the French(l Cal.e Coimipany fromn Santiago de Cuba to Hayti must keep close to its concession, colfining itself to forwarding l)y that line the telegraphic correspondlince exchangedi between both countries, not l)eing al)le, therefore, to ac(ept mnessages l)ut to IIayti, Santo D omingo, Curatao, I a G;uaira, and Vc'enezuela, an(l for all (ot}er places not reserved to the International Ocean and( West Indlia an(l Panama, thlrough} whose lines must be forwarded exclusively all the mlessages sent from this islandl to thle Unite(l States and Europe, and those received from these places, and those passing in transit with destination to the stationls belonmgin, to the \\est Inlia anl l'Panana. This being the result of the petition )efore nmentione(d, I forward it to Your IExcellency for your knoswledge and what may concern. AMay God save Your LExcellelmy mally years. Habana, April 1, 1898. EDUA R11)) O)()Z. The Secretary will recall that the juridical systeml of Sp)aill permreitted certain officials of the executive or administrative l)ralnch of the Govenmiient to exercise judicial powers. T''he deteirininations set forth in the foregoing decrees were made plursuant to such authority, and within the jurisdiction of Spain are entitled to the consideratiol given judicial decisions. Doubtless the Secretary will desire to le informed what 1)ractice was enforced by the Spanish officials in Cuba immediately prior to the American occupation, regarding the transmission over the (Governmelllnt telegraph line between Santiago anld Haballna of messages received fronl or destined for points in the United States, via Haiti anld over the French cable. 'he showing made herein as to the practice is not conclusive. In regard thereto, the Chief Signal Oflicer of the Arnyv reports as follows: The United( States and Haitian Telegraph Company have elaimed(d the righlt to, send telegrams front Santiago to any point oni the islanldl oif Cuba, prov-i(dle s'l(11 telegramns are sent over the land lines, and the Chief Signal ()fficer of tle Arllly has l)been imlfrmled by the agents of sai(l colpany that this riglt was formally (lecidedl })y tle S})anish authorities prior to the Spanish-American war. (I)oc(. 5, No. 2105.) MI1. 'rhonias F. Clark, vice-plesident of the International Ocean Telegraph Comlpany, in letter to the Secretary of WaVar dalted Attglust 3, 1900, refers to the language ttabove qttoted from the rel)ort of the Chief Signal Officer of the Army, and considers that it was intencide "to cover the United States traffic as well as traffic for Hlavti." Mr. Clark insists that, if so intended, the statement is inaccuriate. MItr. Clark also writes: To make sure on this point, I mnade inquiry of our agent in Habana, wlho las represented the company there for more than twenty years. Ile replies: "First. The Spanish G'overnment land lines were worked between Ilalbana and Santiago. ''Secondly. The Spanish land lines did Ilnt accept Ulnited States Imiessages from the 294 French Cable CompIany at Santiago, as that woul(l have been a violation of thle rights of the International Ocean anl( Cuba Submarine Telegraph companies. "Thirdly. The Spanish landl lines did not transfer to the French Cable Comiipany at Santiago any lmessages for the United States." If considered necessary, it will probably not be difficult for the govelnor of Cuba to secure definite and accurate information as to such established practice. Soon after the American occupation of Cuba was established the attention of the War Department was directed to the proposition that under the terms of the Spanish grant, the concession to the International Telegraph Company terminated on May 5, 1880. The facts and provisions of law by which this proposition is to be tested are as follows: The grant to the International Ocean Teelegraph Company, giNven Decembler 5, 1866, provided that the concession was to continue for forty years upon condition "that during the same period of tilne the United States Government doe.s not deprive them of the exclusive grant allowed theim." (Art. 1.) The grant allowed by: the United States Government by) act of Congress approved May 5, 1866, expired by limitation on May 5, 1880. (14 Stat. I,., ). 44, chap. 74.) The condition in the Spanish grant limiting its operation to the period of time during which the grant froil the United States Government continued to be exclusive, was imodified by royal decree dated May- 13, 1867. From salid decree the following is quoted: In view of the petition Ina(le MIarch 2, 1867, b)y the representatives of the abovemlentione(l co( )any, considering that there is no reason for establlishing differences as re>,(gards tillle )etween permissions emlanating froml the samlle Government, * * * I decree as follo\ws: ARTIcLUE 1. The permission to land on tile coasts o,f the island of Cuba the submarine telegraphic catbles referred to by article 1 of the (lecree of 5th of l)ecelnl)er, 1866, will b}e reputed( as a final grant made to the International Ocean Telegraph Comnpany for the term of forty years, sub)ject to the terims established in tlle seconld condition of schedlule of terms for bidders in sale of said grant authorizedt by decree of same date, 26th February last. AIT. 2. For the fulfillment of its 1,rovisions, lbe it un(lerstood that the concession of decree of 5th December, 1866, is hereby mlodified in the sense of the foregoing article. (((tceit (te Ml(tdri(d, MIav 17, 1867.) The ' second- condition " referred to is as follows: The company will mnake use of tile telegraphic lines during forty years, the Government making no other grants during this time for the establishment of parallel lilnes. After the expiration of said term the Governlent will be free to accord pernlissions for new l andings solicited, the company contilning in the enjoyment of the use of their line. For the ends of this article, parallel lines w-ill be such that starting from Cu)a and Porto Rico will have submerged cables running approximately in the same direction. (Gccclta de Mrtadrid, February 28, 1867.) 295 II. CONSIDERATION OF THE SPANISH CONCESSIONS INVOLVED HEREIN WITH REFERENCE TO THE PRINCIPLES ND RULES OF LAW PREVAILING IN THE UNITED STATES. THE CONCESSION TO THE INTERNATIONAL OCEAN TELEGRA'H COMPANY. If the concession of the International Ocean Telegraph Company be consi(lered with reference to established principles and policies of the United States, and the language of the grant tested by the rules of statutory construction prevailing in our courts, I think it would appear that said concession did not create the exclusive privilege of engaging in calle traffic between the United States and Cuba. With us, in order to secure an exclusive privilege to exercise a right or authority belonging to the public, it is necessary that the grant definitely and specifically exclude all others from participation or the right to participate, for our courts construe such grants against the party asserting exclusive privilege and in favor of public rights of participation. In this connection the attention of the Secretary of War is directed to the language of the act of Congr'ess whereby the International Ocean Telegraph Company secured the right to attach its cable to the coast of Florida (see 14 Stat. L., p. 44, chap. 74): That the said International Ocean Telegraph Company, incorporated under the la\ws of tile State of New York, their successors and assigns, shall have the sole privilege for a period of fourteen years from the approval of this act to lay, construct, landl, maintain, and operate telegraphic or magnetic lines or cables in and over tlhe waters, reefs, islands, slhores, aind lands over which thle United States have juris(diction from the shores of the State of Florida, in the said I nited States, to the land of Cuba and Bahamas, either or both, and over West In(lia Islands. For convenient comparison the language of article I of the Spanish concession is again reproduced: ARTICLE 1. Tile grant that on the 19.th of last June was temporarily given by a royal decree to Mr. William Smith, relIresentative of the Telegraphic International Oceanic Company, to fix in some point of the island of Cuba the end of the telegraphic submarine catlle which lhas to start from the coast of Florida in the United States, is now given with a definite character, alnd for the term of forty years, for the placing of the cable or cables, which starting from thle States of the Union, end in the said island of Cuba, provided that during thle same period of time the.United States Government does not deprive them of the exclusive grant allowed them. If said act of Congress is accepted as an example of what language is necessary to create an exclusive privilege of the character now claimed by the International Ocean Telegraph Company, a comparison therewith shows that the Spanish grant stops with the creation of an exclusive privilege " for the placing of the cable or cables, which starting from the States of the Union end in the said island of Cuba." 296 The construction of said Spanish concession for which the International Ocean Telegraph Company contends gives the concession the character of a monopoly. Monopolies are not regarded with favor in the United States. The sentiment against then is sufficiently strong to affect legislation and find reflex from the courts. In some of oar States the creation of monopolies is prohibited by the constitution (Maryland, North Carolina, and Tennessee), and in many inlstances they are prohibited by statutes, while frequent grants of authority by legislative acts require that such authority shall not be used to create a monopoly. It is not established in the United States that a monopoly 1per se is void (ib i'?ito. They are mala )prothiJita. In the absence of antecedent restraint monopolies of many kinds are permissible, and certain kinds are created and protected by statutes enacted for that purpose. (See patent, copyright, and trade-mark laws.) But the fact remains that, in general, monopolies are odious in the United States, and grants thereof are strictly construed against the exclusive privilege and broadly construed in favor of the general right. Continuing the examination of this Spanish concession from the standpoint of the United States before the military occupation of Cubla, the attention of the Secretary of War is directed to the fact that by comity of nations the United States was entitled to communicate with Cuba while that island was under Spanish sovereignty. To dispose of, limit, or control this right, as though it were entirely subject to the discretion of the Crown of Spain, was to deny the right of the United States to communicate with the inhabitants of Cuba. Spain did not assume to make such denial, but, on the contrary, conceded the aforementioned right of the United States and recognized that an exclusive grant of the right to establish means of telegraphic communication between the United States and Cuba required the mutual assent of both Governments. (See Decree Jan. 27, 188!'.) In addition to the rights conceded by comity of nations, the United States during our entire history has considered and asserted that this nation has special interests and rights in and related to Cuba, of such magnitude and extent as to finally justify a demand upon the Spanish Government for the withdrawal of Spanish sovereignty from the island. I therefore think that if said concession to the International Ocean Telegraph Company were created by an act of the Congress of the United States, instead of a decree of the Crown of Spain, a court of the United States would confine the grant to the right specifically set forth in the words used and, giving the grant of exclusive privilege' a strict construction, would hold that the exclusive privilege of "placing" submarine telegraph cables could not be so construed as to prevent the Government from establishing overland telegraphic communication from one point in its territory to another and permitting such means of communication to be used as a common carrier. 297 THE CONCESSION TO THE CUBA SUBMARINE TELEGRAPH COMPANY. The language of the concession to the Cuba Submarine Telegraph Company by which the company asserts it secured the exclusive privilege of engaging in telegraphic traffic between Santiago, Bat:L.bani, and Habana, is as follows (Art. 3, decree of December 31, 1869): The Governlent will not grant to any person or private undertaking the establishment of another land or submarine line to join at Santiago de Cuba, the place of mooring of this cable, and the central telegraph of Hlavana, the only three l)pilts of contact which this line will have with the territory of the island, an( on which only telegrams of a private nature will be transmitted, forwarded, and collected. As construed by the Spanish ministry in the decreee of January 27, 1889 (ante), the concluding words of said article 3 mean that telegrams of a private nature are to be transmlitted, forwarded, and collected by this line only. If such is the correct or binding interpretation of the language of this concession, I think a court of the United States would hold that an exclusive privilege was thereby created and conferred. The Attorney-Genleral has heretofore advised the Secretary of War that the Government of Spain has authority to create and confer exclusive privileges of this character in territory subject to the sovereignty of Spain. (22 Op., 516.) At the time this concession was granted (December 31, 1869)., Cuba and adjacent waters were internationally recognized as within the sovereignty and possession of Spain. Since both ends and intermediate moorings of the Cuba submarine telegraph cable were attached to territory subject to Spanish sovereignty, said cable was not international and the rights of no other nation were involved. The territory in which the Spanish Government agreed land lines should not be constructed was territory subject to the exclusive sovereignty of Spain. and in which Spain exercised the same authority respecting correspondence by telegraph that it exercised over postal affairs. As already stated, the Attorney-General advises the Secretary of War that the rights conveyed by the Spanish concession are rights of property. Such rights differ from the right to exercise sovereign powers created by grants of authority, such as delegated authority to Spanish officials in Cuba. Tne rights of property continued after the sovereignty granting them was withdrawn, while the agencies for the exercise of sovereign power ceased with the termination of the authority of their principal. III. In this case, as in many others from our insular possessions. the inquiry arises: Why not refer the parties interested to the courts and have the questions involved determined by the courts? 298 That such course would be unavailing and improper in this controversy is made apparent by recalling the act of wh:ch complaint is made and by whom such act is done and performed. The act conplained of is the act of transmitting certain telegrams over the telegraph lines owned and operated by the military government of Cuba; and the actor is the military government. The grievance of which complaint is made does not result from the fact that the French Cable Company tenders messages to the military government for transmission over the Government lines to Habana or Batabano; nor from a tende,7 by an individual in Habana or Bataban6 of a message to Santiago. The injury results from the action of the military government in (ccpltingq and transvmitting said messages. The proprietor and operator of the telegraph line performing the act complained of is the military government of Cuba. The agents and instrumentalities by which the messages are transmitted are subject to the orders of the superior authorities of that government upon whom rest the responsibilities for the course pursued. It can not be conceded that the action or discretion of the superior authorities of the military government of Cuba in respect of the use of its property or the performance of a public service, is subject to the discretion and control of the courts of that island or elsewhere. In the printed argument filed herein on behalf of the several cable companies, resisting the application under consideration, occurs the following: If the Secretary of War declines to make the order now applied for by the International )cean Telegraph Company that company can at once file a bill for injuiction in the courts of Cuba or in the courts of New York and obtain all the relief it is entitled to. If, on the other hand, the Secretary of War should grant the application which the International Ocean Telegraph Company makes, the four telegraph and cable colmpanies, whose business to and from Cuba is thereby stopped, are unable to get into the courts to establish their rights and claims. They can not enjoin the Secretary of War from making or enforcing his order, neither can they enjoin the Western Union Telegraph Company or the International Ocean Telegraph Company from carrying on cable business between the United States and Cuba. To the writer it appears manifest that both contestants are equally incapable of securing a revocation of such order as the Secretary of War shall make in this matter, by applying to the courts. A further objection to following the course suggested in the above quotation is that the writs of injunction and mandamus are unknown to the Spanish code of civil procedure. This code has been continued in force in Cuba by the military government because its provisions were known and acceptable to the inhabitants. It appears to the writer that the determination of the question involved does not require the exercise of judicial powers. The situation to be resolved is as follows: The military authorities offthe United States in Cuba determined that the military situation required the establishment of telegraphic communication between the several 299 part.- o(f the island, and thereupon constructed a system of overland telegraph lines extending to a number of cities, among others Santiago, Bataban6, and IHabana. The lines being in operation, it appeared that the business of the Government was not of such voltunle as to fully utilize the time and capacity of the system. Thereupon it was determined to permit the passage of private messages over said lines. The transmission of private messages was an act of grace, and the military government retained the right to refuse the use( of its lines for that purpose at any time it saw fit so to do. The International Ocean Telegraph Company and the Cuba Submarine Telegraph Company now complain to the Secretary of War that by perllmitting private telegrams of a certain origin to be transmitted over said Government lines between certain cities or stations in Cuba the military government of the island is imilpairing the property rights of each of said cable companies. The investigation occasioned by these complaints is not made for the purpose of j tdicially determiding the questions involved, but to afford the Secretary of War the necessarv information to enable him intelligently to exercise his discretionalr pxowers in the matter of the use of property owned )by the military goverinment of Cuba. How and by whom such property shall be used are matters to be determlined by the superior authorities of the Government owning the property. Therefore, the use of said property by private persons nmay be denied entirely, or the property may be opened to the use of the general public as a common carrier, or the use mla- be restricted to certain purposes or persons. That is to say, the property is to be used in such way and under such restrictions as the competent authorities determine. subject to the laws and usages of military occupation and the stipulations of the treaty of Paris. No private p)arty or concern has a vested i,;f/td to use said lines. If the Secretary of War determines that said Government lines shall not be used for the transmission of said cable messages between Santiago, Batabalno, and Habana, the effect will be that the Governlment lines will surrender the revenue to be derived from the service, and require the French Cable Company to utilize the cable of the Clluba Submlarine Company. IV. There remain to be considered the rights of the general public and what is required pro 7)ono putlico of Cuba. These matters involve admiiiistrative questions and therefore are beyond the limits of discussion prescribed for the law officer of the Division of Insular Affairs. The Attorney-General has heretofore advised the Secretary of War as follows: I do not think that controversies as to grants and franchises derived from Spain but exercisable within the island of Cuba, or other islands derived by the United States from Spain, ought to be precipitated to a decision in the present unsettled con 300 dition that prevails in those island(s. It is better to preserve, in all cas'l~ of doubt and difficulty, the present status until the full restoration of the civil regime and the establishment of permanent governments, under which the rights of all can l)e duly and dleliberately determined. (Letter to Secretary of War, June 15, 1899, 22 O)., 514, 519.) By "present status" I understand the Attorney-General to mean the 8sta(tl.8 o (t0 e hell)ium. If the course advised by the Attornev-G-eneral is pursued herein it will preserve to each cable company the rights secured by its concession as those rights were understood and exercised under the sovereignty from which they were acquired, and relegate the questions of what changes were effected by the intervention of the United States and the resulting war, and their permanent adjustment to the changed conditions, to the people in whose behalf the intervention was made, and enable that people, in their associated capacity, to determine said questions with reference to such governmental polity as they adopt. For the convenient reference of the Secretary of War, there is set forth the following extract froml the report hereon by Col. H. H. C. Dunwoody. Chief Signal Officer, Division of Cuba (3d indorsement, No. 2105): In my judgment the interests of the general public, which are of more imporltance than the interests of a single corporation, will be better served by permitting existing conditions to continue, and leaving the International Ocean Telegraph Conmpany to secure its rights and to collect any damages which may result from the maintenance of these conditions from the government which may be finally established in the island of Cuba. Also the report hereon of Major-General Wood, military governor of Cuba (4th indorsement, No. 21)05): HIEADQ)rATE.l 8 1)IVISION OF CUBA, Itb(tnll,,',)etemtber 3, 1900. Respectfully returned to the honorable the Secretary of War, inviting attention to the opinion herein expressed. The military governor is of the opinion that the International Ocean Telegraph Company is entitled to certain protection and rights, and said rights and protection are violated by the use of the United States land lines for transmitting messages of the French Cable Company between Cuba and the United States, anl that the United States Signal Lines should not accept United States messages for the French Cable Company at Santiago. They should not transfer to the French Calle Company at Santiago any messages for the United States. This will no (oubt work hardship upon the general public in the way of an increase in the present rates of the International Ocean Telegraph Company, once they are established in the rights granted in this opinion, and in or(ler to protect the public and business interests, a rate not exceeding the one now in force should be fixed and agreed upon by the International Ocean Telegraph Company. The French Company should, however, be allowed to transmit messages from the point of its landing in Cuba (Santiago) to any point in the interior of Cuba, provided such messages are not for transmission to the United States. If the honorable Secretary of War is in accord with this recommendation, the necessary orders will be issued. LEONARD WOOl). 3(Major-General Comm na(iyg. 801 T1he foregroing report, in myI opnoebraces all the inatters involved essential to the determination of the conitroversy and the ascertainmuent of the course to lbe Pursued bv the military' gfovkern-1 mlenlt of 01uba. III (Ical i ng wi~th cas~es -arising within the territorial j urisdiction of the millitarv o-overnment., the Sec-reitary of War adopts the rutle that his action w henever possib~le, wvill lbe confined to indicating the, admninistrativ c policy or general principles byv which a e-ase is to lhe (determined. rel(egating to the local authorities the mnatter of ascertaininor the ftacts involved and app~lying the administrative policy 01I g-eneral principlles theieto. Pursuant to this established policy the Secretary,of Wa'r instructed the military governor of Cubat as follows: The iiiilitarv governior o)f Cuba is hinstrneted that in the mantter o)f the use o.f thle,overlaii(l telegraph linies- operated lbv thle government, of (ni a to transmiit messages reeeive~d froml or dlestinied for pont in the United States, via 1-ait i anid o)ver the Frencli calble, hie is to ascertain anil thereafter maintain the 5/t0/ois m (twe n/ bcllion, and to. reserve the final andl exclusive deternminationi of the qnestions inivolved for the coinsidlerat~ion o)f the pernianent governiienit of the islani(l. Ellii Ii mR('I', Ycrrc/o I)f ofMI ).nni31, 1901. The -foregoing order -was trafnsmnitted to the nmilitary grovernor o)f Cuba in the following coinnunication: )iin30, 1901. Si:The ceoiitrov\ersy regarding- the relative anil resp~eetive rights of thle caldle (01npanicis whose cables are landed in (nba, land the use. of the governimiiet o)verlanid telegrapdh lines for the tranismissioni of eable messrages to,and for the, Frecmih (able CopinvI ins bencrflyiietgt-~ nthe War D epartiment, and I have listenled to extend~ed argumi-ents thereon by thle attorneys for the initereste-_d ouinl),anies. Apluarentfly the only qjuestionl now involved whieh the military governnient has juris(I iction to deternmine is, D oes tlie transmission of private mnessages 1 it weeni Samitiago, l~abania, and elsewhere over the governmenit telegraph lines violate righlts of prop~erty conferred hv the existing cable eoncessions- granted iiy Spaiii?' Tihe law offheer, IDivision of Insular Affairs, War Department., has sulbmittedl a com-1 preheiisivXe report onl the propositions hinvol ve( ini this controversy, wherein a at ters are set. forth which ajiparentlv establish that. tileSpan-ish conicessions to the Cuba Submarine Telegraph Compainy, coiifers the exclusive privilege of transmitting, prio-ole telegraph messages passing between any tw-o of the following points in Cuba: Santiago (le Cuba, Bataban6', Cienfnegos, aild the central station in Habana. This exclusive lprivilege iloes ilot include governiilent mlessages between said lpoints nor private messagres between any on~e of said points anli other p)oiilts not reserved to tue. Cuba Submarine C.onpanv. If this view is correct, it would follow that the, military governineilt. of Cuba violates the terms of the concessioin to the Cuba Submnarine Teleg~raph. Company when it lpermits the governmlent telegraph lines to lbe used for the trails miss~ion of private miessagesl~)assingobetween any-lii-o of thefotr points abo(ve iiidicated~. in dlisposing (of this matter I think it advisablhe to follow the ordinary procedure and confine my-i action to inihicating the general policy or principle to be adheied to, and remit the (heterniination of thie specific questionis involved to the government of the islanld. 1 therefore transillit aii ordher hereiln, inistructing you to ascertaill, and thereafter maintain, the no/uhs (10o on/c Ibc~oin. 302 I inclose you a copy of the report of the law officer, D~ivision of Insular Affairs, which I think will lbe of material assistance in ascertaining the, previo~u- stuthis and present situation. V'ery respectfully, EiTi ROOTr, Secrvt(( )Y o( I' Brigy. Glen. LEoN-ARD WOOD), Military Governor of Cvbat, fabartia, Cuba. Subsequently the following comumunication was receivedl from the military governor of Cuba: 1hEADQ[UARTER.- 'MILITARYu GOVERuNOR, ISLAND) OF CUBAk, Ilabanaa, farnuaril 29, 1902. SIR: Referring to vouer communnication of January 24, inquiring as to the action takeii iu the controversy regarding the French Cable Coumpany, reference being had to letter of October 30 last from the honorable the Secretary of War, I have the honor to inform you that upon receipt of the Secretary's letter the Chief Signal Officer of the IDepartmnent was (directed to institute an investigation for the purpose of ascertamning the status quo ainte beliwo, as the whole inatter seems to have been in a good (deal of dloult. IHowever fhe following ordler, which, it is believed], establishcs4 the conilitions formerly existing, was issuedl: ["Circular No. 1.] "JANUA~RY- 28, 1902. To all rnconagers f g()r(rowetwd teleg.(raph) otfces, islaodl of Cuba: "By the (lirection of the military governor no messages (lestined for any point in the United States, Europe, or lbeyonl(l will lbe acceptedl at any government telegraph office for transmission over the lines of the French Cable Company; nor will any government telegraph office accelpt from the French Cable Company, or any of its offices, a message from any point in the U~nited States, Europe, or bey ond for transmission over the government telegraph lines in Cuba. "Very respectfully, LEOTNARD Woo1n, Military G'orernior of Cuba. Capt. C. R. EDWARDS, Teitth Iofaitrq, Do 'moon of Jiisularn Affairs, W~ar Ihjsattvuntl'aod 'to,I). C. IN THE MATTER OF COMPLAINT MADE BY THE OWNER OF THE BRITISH VESSEL "WILL 0' THE WISP"' BECAUSE OF CERTAIN RESTRICTIONS PLACED BY THE UNITED STATES UPON TRADE WITH THE SULU ISLANDS, CONTRARY, IT IS ALLEGED, TO THE PROTOCOL OF MARCH 11, 1877, BY THE REPRESENTATIVES OF GREAT BRITAIN, GERMANY, AND SPAIN. ALSO THE DEMAND OF SAID OWNERS FOR TEN THOUSAND DOLLARS FOR DAMAGES OCCASIONED BY THE ENFORCEMENT OF SAID RESTRICTIONS. [Sumimntti d October 241 1599 C(s 1tNo 870, Division of Insular Affairs, WXarT D partenut.I SYNOPSIS. 1. One of -the important incidents of military government is the regulation of trade with the inhabitants of the territory subject to its jurisdiction. The right so to do is well established by the laws and usages- of nations. 2. 'When sovereignty over the Sulu Islands was transferred to the United States the treaties of the former sovereignty respecting trade with said islands ceased. This matter has not been referred to -Major-General Otis for a irepor't on the facts. In my opinion such reference and r'eport are unnecessary, 30:3 for the reason that the facts as claiied 1by the complainant are not sufficient to constitute a just cause for colmplaint nor to entitle comlplainant to damiages. The coliplaint is occasioned by the enforceineiit of the following order: By tlle (lirection of thle co(lllnman(ler ill c'hief, I'nitel States nlaval force on the Asiatic Station: All tra(le witll the P'hilippinesi is prohibited(, except with tile ports of Maniiila, Iloilo, Cebfi, andl Bakalote. Ships aret herelby warnel to go nowhere else il thle Philippines. (See copy attache(l to lrotest, I)oc. 1.) It is claiimed that this order is a violation of the terms of the protocol of March 11, 1877, and also protocol of March 7, 1885, nmade betwveen Great Britain, (Germlany, an(l Splain, whichl, it is asserted, declarc - that B-,ritisi ships are absolutely free to trade in the Archipelago of Sulu witlhout touching in the first inlstance at ally stated point in tile archip)elago and that Sil)lil would in no way ob)struct the imp)ort or export of Imerchandise. (See Irotcst, Doec. 1.) On May 18, 1899, whenl the Will o' t/i, 1l7)p sought to trade Nwith the inhal)itants of the Sulu Islands, that territory was subject to military government. Birkilimer on AMilitary Government and M1artial Law (p. 2()4) says: )One of the most important incidents of lnilitary government is the regulation of trade with the subtjugated (listrict. The occupying state has an unliuestione(l right to regulate comn inercial intercourse with conquered territory. It llmay he absolutely prohibited, or permitte(l to l)e unrestricte(l, or such liinitations mlay be imlnosedl thereon as either policy or a proper attention to military measures may justify. While the victor maintailis exclusive plossession of the territory his title is validl. Therefore the citizens of no other nation have a right to enter it without thle lpermission of the dlominant power. IMuch less (a tlher clail al unrestricted rilght to tra(le thereiii. In Fleming,. Page (9 How., 6i15) the court say: It is true that whel Tampico hadl lbeen subjugated, other nations were bIound to regard( the country, while our possession continued, as the territory of the United States and to respect it, as such. * * * The citizens of no othler nation, therefore, had a right to enter it without tile permissioni of the American authorities, ior to hold intercourse with its inhal)itants, nor to trale witll them. (See 'also Amlerican Instructions to Armiies in the Field, sec. 5, clause 1; Bluntsc;hli, 1, sec. 8; Mianning, p. 167.) Upon the Sulu Islands being ceded by Spain to tle United States the treaties of the formler sovereignty respecting trade with said islands ceased —that is to say, the agreemnents itiade by Spain relhttive to trade with the inhabitants of the territory ceded do not attach to the soil or become a lien upon the territory which the new sovereignty is bound to assume or maintain. Hall on Inteinational Law (4 ed., p. 98) says: Thus treaties of alliance, of guaranty, or of commerce are not b}inding upon a new state formed by separation, and it is not liable for the general debt of the parcnt state, etc. 304 The suame rule is applied ill territory ceded to another state as where tlhe territory separated becomes an independent state. (Id., p. 104.) I Nillleck,n International Law (3 ed., vol. 1, chap. 8, sec. 35) says: But tl.w obligationis of treaties, even where some of their stipulations are, in their terms, perpetual, expire in case either of tle contracting parties loses its existence as an ilndepe(ndent state or in case its internal constitution is so changed as to renler the treaty inapplical)le to the new conlition of things. This doctrine originates in the fact that permission to foreign nations to trade with its subjects is an act of grace on the part of the sovereignty. It may be that where the sovereignty. continues a change of persons or instruments hy which it is administered does not change the lareemenlt or obligation to extend the grace upon the designated conditions. But where there is a complete change, not only of sovereiilgns but of sovereignty, of lnecessity the agreement ends. for each sovereignty must exercise its grace in accordance with its own constitution, laws, an:(l customs. The most insistent instructor which the United States has had as to this canon of international law has been Great Britain. I shall not attempI)t to review the instances, )butt simply call attention to the controversy regacrding the fishery privileges upon the coasts of Newfoundland, Nova Scotia. and Labrador, in which Englald insisted that the seplaration of a new state from an old one involves the loss, on the part of the inbhabitants of the territory of the new state, of local rights within the territory remaining to the old state which had previously been enjoyed il common )by the subjects of the original state. (British and Foreign Papers, vol. 7, pp. 79-97.) The controversy was ended b1 the treaty of 1S18, in Nwhich the contention of England was conceded to be correct. In the contlrovers; between the United States and Great Britain with referelnce to protectoirate exercised by the latter power over the Mosquito shore, Lord Clarendon declared that " Mexico was not considered as inlheriting the olbligations or rights of Spain." (De Martens, Nouv. Rec. Gen., vol. 2, p. 210-216.) In regard to Mexico, Hall on International Law says (4th ed., p. Th,, very fact that Mexico succeeded( to all the territorial rights of Spain, and conse(liuntly to full sovereignty within the territory of tlie Republic, shows that it could Inot be blurdened Iby limitati(os on sovereignty to wh-ich Spain had chosen to consent. It l)ossesesel all the rights ap)pertaining to an independent state, disencum)ered from personal contracts entered into by the state from which it had severect itself. The sovereignty of the United States in the Sulu Archipelago is not encumlbered with the personal contracts entered into by the Crown of Spain regarding trade with the inhabitants of said islands.a See oite p. 177 et seq. 805 The Secretary of W~ar approved the views expressed ini the foregoing report and advised the State IDepartment as follows: WAR I)EPARTMEN-T 11 ashoington, fonuarq 30,O 1900. SIR: I have the honor to acknowledlge the receipt of your communication of t1o 18th instant, relative to the claimn of the Britishi steamer Ji~ll-o-the- WixJ7., on account of losses sustained1 through the action of the United States authorities in forbidd1ing., and p)reventing her trading wvith the Sulu Islanlis, andl beg to hand you. herewith copy of the report of the law officer of the( JDivision of Customs and Insular.Affairs, of the War D)epartment thereon, whose views are concurred in by this Department. Very respectfully, Liiii ROOT," ASecretry of i1'or. Tile SECRETARY OF STATE. THE PROTECTION BY THE GOVERNMENT OF CIVIL AFFAIRS IN CUBA AND THE PHILIPPINES, OF TRADE-MARKS REGISTERED PRIOR TO THE TREATY OF PARIS (1898) IN THE INTERNATIONAL REGISTRY AT THE BUREAU OF THE UNION FOR TrIlE PROTECTION OF INDUSTRIAL PROPERTY, BERNE, SWITZERLAND, UNDER THE INTERNATIONAL AGREEMENT CONCLUDED APRIL 14, 1891, TO WHICH SPAIN WAS A PARTY. F-qibmiitte(1 '\Iarcli 27, 1901. CaistNo. 91), Diviio 15)f) lusul ir\f~airs W\Xar 1)(inrtm& ut. SYNOP114sI. I. Righits of property in trade-marks, in C"uba, aili( the P)hilippines, an1r elltitledl to th-e protection stijpulated for "property of all kinds'' ini Articlcs, 1 auol Vi Ii of thie treaty of Paris, 1898. 2. TFradle-marks registeredl in the '' International Registry at tile Bureau of the 1-ilion for tile Protection of id~ustrial Property, BenSizeln,'lrior to the treaty o)f Paris, 1.898, are untitled( to the same recognition anid Itrotectioll froin thle Ililitary (,overnmnents of Cuba andl the Philippines as trale-marks registeredl in the naitional registry at Madlrid or in one of thie prov-incial registries of the islands-. 3. The pr~esent, provisions for sai(1 recogilition and plrotection are inadlequate. Snw: 1 have the honor to acknowledge the receipt of your r2(lquest for a report on the following questions: 1. Are, trade-marks which were registeredi at the International Registrv, Berne, Switzerland, prior to the treaty of Paris (18198), entitled to recognition and protection in Cub(a andl the Philippinles, without })einor registered in the U1nit~ed State's? D.lo the provisions of Circular No. 12. I )vision of Cus tomis and Ins,-ular Affairs. War Department, April 11. 189 afford the priv-ilege and lprotection which the, U~nited States is b)ound to accord trade-marks so reg'istered? I have the honor to report that upon examination I am of opinion that question 1 should be answeredl in the athrnmative. and question. 2 in the negative. 1394-0('2 ' 20 306 That the Secretary of War, in determining these questions, may be as fully advised as my examination permits, the following is sulbmitted: The questions examined are raised by MI. Morel, Director of the Bureau of the International Union for the Protection of Industrial Property, at Berne, Switzerland, by letter addressed to the Secretary of the Department of the Interior, by whom the letter is referred to the Secretary of War, with a request for an expression of views. By an agreement concluded at Paris, March 20, 1883, the Governments of Belgium, Brazil, Spain, France, Guatemala, Italy, Netherlands, Portugal, Salvador, Servia, and Switzerland constituted themlselves into an " International Union for the Protection of Industrial Property," and established a "'bureau' at Berne, Switzerland, for the promotion of the purposes of said union. The industrial property concerned was largely patents, copyrights, and trade-marks. The United States gave its adhesion to said agreement and became a menlmber of said Intelrnational Union June 11, 1887. (See Proclamation of President Cleveland.) In 1891 there was formed within said International Union a second union or association of nations. The purpose of this second association was to provide an international registration of trade-marks. This association was separate and distinct from the first union, excepting that membership in the second association was dependent upon membership in the first association. The Governmnent of Spain gave its adhesion to the international agreement creating this second association, but the Government of the United States did not. The agreement concerning the international registration of trademarks was concluded at Madrid April 14, 1891. A copy of said agreement is hereto attached. The attention of the Secretary is directed to the provisions of Article I and Article IV thereof, which are as follows: ARTICLE ]. The subjects or citizens of each of the contracting states-.lay secure, in all of the other states, the protection of their tradce-marks accep)ted at the depository in the country of origin by -eans of the deposit of the sai(l marks at the international bureau at Berne, madle byr the intervention of the government of the said country of origin. ART. 4. From the timne of registration so lmade at the international bureau, the protection in each of the contracting states shall be the same as if the mark ha(d been directly deposited therein. Continuing the investigation it becomes necessary to ascertain whether the privileges stipulated by the Government of Spain were confined to the Spanish Peninsula or extended throughout the Spanish dependencies. In his letter to the Secretary of the Interior, MI. Morel, director of the international registry, says: These marks had not been specially liled( at Manila with the idea that international registration extended its effects to not only Spain itself, but (t1lso to its c(',oblie 307 The-, order of August 14, is7,187, issuied l)V the Spanish Repilbli(-. eonPains the following: **The Governmient of the Republic has (Ieeaedl proper to (lecide that: every foreigner, whatever he his nationality, lprovidIed that com-miercial treaties hav~e 1 cen celebratedl with saidl nation, uswhen requesting the use of a trade-miark in Spanish territory, comlply w\Nith all the provisiong thereof; and therefore as soon as hie proves that hie has olbtaine(1 the ownership in his country andl files in the general (direction of public works, agriculture, iiinlustry ani( (0lnec, h te dciiet which hare been,stipulated, duly legalizedl, that the proper certificate he issuedi to himi free of cost.** The use of the termi '" Spanis,-h territory" indicate-s that the, provusions of trade-mark treaties were considered b\- the Spanlish (Gioverniment as applying to all parts of the Spanish domiainl. The Spanish law of Auigutst 21, 18,S4. regutlating) piropeity righlts to trade-marks, etc., in the ipiovinices of (d.ietb and~ l'ort() Rico, prov ides 'as follows: Airr. 11. Foreigners residling outtsidle of S~pain s-hall have the rights4 granted thenm lNv the agreemients celebrated w\ith their respective nati( ns:. -Should there be no treaty, the lawN ()f reciprocity shall be strictly observed. The ro al order of October 26i 1888, published inl the (wi of Manila, December 22, 1888, reguilating the use oif trade-niarks inl the Philippines, containls a similar provision as followsd: AiRT. 11. Foreigners residing outside of Spain shall have tihe rights grantedl thenm hr, the conventions celebrated with their respective nationts. Should there be no treaties, thle law of reciprocity shiall h~e strictly olo-erve~l.Air. 30. As the registration (f foreign miarks mnust IC ina(Ie subject to the ce)nventions which miay hare lbeen celebratedl with their gyernmnents, thme petitions Iresented for the purp.ose shlall b~e subminittelI to the (decisiomn of the ( iovernmnent of II is..Majesty. ART. 31. There shall be a special register for foreigners not: re~sidling in S'-panish possessions, which shall b~e kept wvith the forinalitie~- irescribe~l in article 24, and in which shall be entered. furthermore, the country whfere the industrial, comniercial, or agricultural establishmnent, of the owner ot time miark, (Ira\wimig, or mo~le is situiatel, as well as the (lip1lomatic convention establishing recilprocitv. Air.:321. 'Manufacturers, inlustrials, mnerchants, or agricultuirists w ho, residing in the Peninsula or adjacent i-landls, or in thle islands of Cub or l)orto I ico, shiould. (lesire to insure in the archipelago the owvnership of the marks which indlicate their lprodlucts or of their (irawings o)r of their industrial models, prorided that they are authorized and acknowledged, and that tile person interested possesses the pr oper certificate or title of ownorship, issued in accordance with the laws in force thereon, shall apply to the Colonial JDepartmient, attaching to their petition a. legalized transcript and a (luplicate drawing which represents the mnark, (drawing, or mnodel b)elonging to them. After the General Government has received one of the copies- of the drawNing or industrial model referred to in tie foregoing paragraph, it shall be forwarded to the general direction of the civil administration for the proper ste1)s, andl in order that the rights of the persons interested mar be resp~ectedl andl protected in accordance with this decree. They may also apply directly or through a representative to the governor-general in order to insure the ownership of their mnarks, (Irawings, or indlus-trial models. 308 AT.;3. The general direction of the civil administration shall enter i; a special register by strict order of dates the petitions presented directly by the persons intereste(d who residte in tle IPeninsula, adjacent islands, or other colonial provinces, as well as those traniisitte(d by the Colonial I)epartment, issuing to the persons intereste(d whoI request it the proper certificate and publishing the concession in the Gazette of thle Capital (Madrid), as prescribed in article 29. ART. 34. The ownership of marks, drawings, and industrial models granted by the Interior I)epartnent shall lapse in the archipelago on the (late that the General Government approves tlheir lapse in the Peninsula. ART. 35. Any person domiciled in the archipelago who has obtained a title of ownership for his marks, drawings, or industrial models in accordance with the provisions of this decree may have his right extended to all Spanish possessions. For this pl)rplo.'e he shall present a petition requesting it to the General Government, which shall forward it, togetler with its report, a copy of the title granted, and of the drawings which represent the iiark, drawing, or industrial model, to the Colonial Department in order that the latter may forward them as the case may be to the Interior Department or to the governors-general of the other colonial provinces. a The Spanish Government adopted a liberal policy in affording protection to both foreign anld domnestic trade-marks. (See international agreement concluded:It Parls March 20, 1883; international agreement concluded at Madrid, April 14, 1891: royal order of December 15, 1893; law of August 12, 1884; order of August 14. 1873; law of November 20, 1850; law of July 1t, 1851: law of April 11, 1858; law of Septembelr 1, 1888; law of Felbruary 12, 1889.) Trhe infringement of rights secured by registration of a trade-mark constituted a crillinal offense punishable by fine or imprisonment. (See section 217, Penal Code of Spain; sections 277, 278, Penal Code in force in the Philippines.) Suppllementing thec specific provisions of law above quoted, b-, considerationl of such liberal policy, I feel justified in reporting that trade-mlarks registered at the international registry, Berne, Switzerland, sulbseqiuent to April 14, 1891, and prior to the Amrerican military occupation of the Philippines, underl the pirovisions of the international agreement concluded at Madrid April 14, 1891, were protected in the Spanish colonies in manner and extent as were those registered tunder domestic llaws. Such was the condition existing when the treaty of peace between Spail anld the IUnited States was concluded. (Paris, 1898.) T'hat treaty provides ias follows: AmR. XIII. Tile rights of l)roi)erty secure(d by co1prights and patents acquired by Spaniards in the island of Cuba anll i I'Porto Rico, the Philippines, an(l otler ceded territories, at the time of tlhe exchange of the ratifications of tilis treaty, shall continue to be respected. * ** 1A diligent search of all means of information available at the War Department, the State I)epartnlent, the United States 'atent Office, the Library of Congress, and the report to tle Fifty-sixth Congress of the commissioners appointed to revise the statutes relating to patents, trade and other marks (S. Do. No. 20, 2d sess. 56th Cong.) failed to secure any definite ascertainment of this matter other than above set fortlh. 309 It wvill )e, noticed that trade-iiarks are Hot includled inl this' article and the rights of property wvhich "~ Shall continueC to be repceiare, expressly limited to those acquired by Spaniards." Th e United States, Stiprenie C/ourt says: Pr )perty in a tradle-inark, or rathier in the( use o)f a Ira~le-miark o)r name, hasd, Nvry little, analogyv to that. wh-ichi exists ill copyrIights (iv ill patents for iniventi uls. (("anal Company i. Clark, 13 WVall.,:311, 1322. Section XlJI_ of the treaty ha~r(flly su)pports, the propositioti ad1vanced( lby Ml. Morel. But the U nitedl States i)N- international ag)reci-nelits, aii(l I)\ doniestic laws recog)nizes trade-miarks andI rights the,reto- a.s.property, antid protects sitch pro)perty iy special statutes auill the applic~ation of greneral principles-. (U'pton Onl Trade-Mfarks. 10 ('anal Clo. o. (larkl. 18" Wall., 311 322.) Aritcl1 Viii1 of said treatY prm'oidles as t')IIollw s: Jt is herebv dleclaredl that thie relinqtuishmnent. or cession, as- thle case nay h e, to whn Ih the prece(iug paragraph refers, can not. in any respiect impair theo lpn)Pertv i)r or of pirvxate indlividulals, of elvfmionie iaionalihj Soc/i1 lwoiriimbo~~ miou iii'. -Arict(le I with special reference to) Cuba, provides las fo(llIowAs: -And as the island is, upon its evac-uation by Spain, toi he o)ccupiei Ivy thle Unlitedi States, the U.nited States will, Iso longP as such occupiatiomn shiall last, assume and (duscharge the obligations that mnav undler initernational law result from the( fact of its occupation, for the protection o)f life anil piroperty. Apparently the lprox-isions of these two articles are, sufficient ly coinprehensive to incllude rights of property in trade(-miark-~s. if it be true that registration of a trade-nmark a[t the International Registry at Berne secured1 in Spaniish territory thie protection of the, Spanish law, nd the United States is ruire wte vs IpuaIons to Continue protection thereto in territory ceded or relinq~uished to the United States 1y Spain, it becomes necessary to considter how the 1)10 -tection is to lbe afforded. In the tUnited States this protection is usuallv aLfforded'( 1y -a wvrit of injunction. To entitle. the-, owne~r of a trade-mark to this writ it is not necesstary that the trade-mark shouldl be reggistered. It is sumfficient if the applicant onil establish a, prior lawful use of saiol nark~, continued for a length of time sufficient to raise, a, presumption that the gelneralI public hav-e lbecome familiar with. it; (and thereupon the writ is issue(1 prohibiting infringements upon the rights of said owner, inl order to prev-ent a fraud upon the public beingr perpetrated. The writ of injunction as known and used in the United States is not known to the Spanish law. Trhe Roman law, from whence the Spanish law is derived, had what is known as the "'interdict, resem.bling in many respects our injunction. The principal objection to the 310 interdlict, from the American point of view, is that it calls for the exercise of judicial powers by officers of the executive or adriinistrative b1ranch of the government. The owner of a trade-mark was protected, under Spanish law, by enforcing the provisions of the penal code inflicting a penalty for infringement of said rights, and by civil action for the recovery of damages. (Article 12, Royal order, October 26, 1888. Philippines.) To entitle the owner to the protection so afforded, it was essential that his trade-mark be duly registered. (Royal decree, November 20, 1850; Article 4, Royal order, October 26, 1888. Philippines.) The Spanish Penal Code has been continued in force by the authorities of the military government in the territories ceded and relinquished to the United States by Spain. The attention of the Secretary is respectfully directed to the fact that instead of affording protection to trade-marks by the means utilized under the Spanish laws the authorities of the military go — ernments were required to comply with the requirements of the following order: Circular No. 12. Div)ision of Customs and WAR DEPARTMENT, Insular Affairs. J Washington,.pril 11, 1899. The following is published for the information and guidance of all colcerne(: In territory subject to military government by the military forces of the United States owners of patents, including design patents, which have been issued or which may hereafter be issued, and owners of trade-marks, prints, and labels, duly registered in the United States Patent Office under the laws of the United States relating to the grant of patents and to the registration of trade-marks, prints, and labels, shall receive the protection accorded them in the United States under said laws; and an infringement of the rights secured by lawful issue of a patent or by registration of a trade-mark, print, or label shall sulject the person or party guilty of such infringeiment to the liabilities created and imposed by the laws of the United States relating to said matters: Provided, That a duly certified copy of the patent or of the certificati of registration of the trade-mark, print, or label shall be filed in the office of the governor-general of the island wherein such protection is desired: And prorided further, That the rights of property in patents and trade-marks secured in the islands of Cuba, Porto Rico, the Philippines, and other ceded territory to persons under the Spanish laws shall be respected in said territory the same as if such laws were in full force and effect. G. 1). MEIKLEJOHN, Acting Secretary of War. It will be noticed that said order provides that* * * in territory subject to military government by the military forces of the United States * * * an infringement of the rights secured by lawful * * * registration of a trade-mark, print, or label shall subject the person or party guilty of such infringement to the liabilities created and imposed by the laIws of the United States relating to said matters. It will serve the Secretary of War no useful purpose for the writer to discuss the proposition that while the military government of terri 311 tory ceded or relinquished to the United States may provide a law for itself, the provisions of which are identical with those of a law of the United States, said militalry government is incapable of extending a statute of the United States )beond the territorial limits of the United States as they existed at the time the statute was enacted. The attention of the Secretary is also directed to the fact that, as construed by the Interior Department of the United States Government, said circular No. 12 makes it " necessary for the owner of a trade-mark to register it in the Patent Office in this city before he can obtain any protection thereunder in the Philippines." (See letter from Secretary of the Interior to Secretary of War. March 8, 1901.) The Interior Department does not include in this interpretation trade-marks registered in the islands or at Mladrid prior to the American military occupation. If the views hereinbefore set forth are accepted as correct by the Secretary of War, said circular No. 12 should be so interpreted as to afford protection to trade-marks registered at the International Registry, Berne, Switzerland, pursuant to the international agreement of April 14, 1891. and prior to the mutual exchange of ratifications of the treaty of peace between Spain and the United States. The total number of trade-marks registered in said international registry up to October 31, 1898. was 1,6;45. (See report of M. Morel, director, etc., for 1898.) That the Secretary of War may be fully advised in regard to this matter, attention is directed to the factt that the order known aLs "Circular No. 12, Division of Customs and Insular Affairs, War Department," was prepared in the Department of the Interior, and the construction thereof, under which its provisions have leen enforced by the military governments, was originally given by the Department of the Interior and subsequently acted upon by the 'Warl Department. The question as to what extent and in what manner the military governnents would afford protection to trade-marks was first presented to the War Department in March, 1899, at which time a circular was prepared in the Division of Customs and Insular Affairs. Prior to its adoption it was referred to the Commissioner of the United States Patent Office, who submitted first certain amendments and subsequently a draft of an entire order, which was adopted by this Department and promulgated as said circular No. 12, April 11, 1899. (See letters from Commissioner of Patents dated April 1 and April 10, 1899.) Subsequently a letter was received by the War Department from M. Morel, director, etc., in which appears the following: 2. The filing marks in these colonies: May this be operated directly in virtue of the decree of August 18, 1884, for Cuba and Porto Rico, and that of October 26, 1888, for the Philippines? Or, also, is the method of procedure indicated in said circular No. 12 the only one to which foreign proprietors have recourse? 312 The letter of MI. AIorel was referred to thle Secretary of the Interior, by letter of March 17, 190(, with a request for an expression of his viewvs. In response thereto the Secretary of the Interior ttrallsllitted a copy of a letter setting forth the views on the subject of the Commissioner of Patents, Interior Department. In said letter the Colllmissioner of Patents says: If this question is understood, it asks whetller trad(e-marks Iy bet registered in the islands of ('uba, Porto Rico, and the Philippines, in view of the said decrees. On Decembler 2, 1898, the Attorney-General of the Unite(l States made a (lecision bearing on the status of these islands. 11n view of said( decision this office has informed interested pIarties tlat it is necessary for owners of trade-larks to file applications for registratioui of their imarks in this (ounntry, and that after they- ha-ve been registere(l here they may, as l)rovided in circular No. 12, above referred to,, and Nos. 21 34, 34, anl 38, obtain c(ertifie(l copies of the registration in this culntry lanl (e)posit snch certified copies in the islands lnder Illilitary control and such owners will receive protection as specified in sai(l circulars of the War D)eplartment. (See letter ad(lressed to Secretary ),f Interior bl Conmmissioner of IPatents (latedl March 27, 19.00.) The War I)epaLrtlent accepted this interpretationl of said ( icirclar No. 12 as correct,, and acted in accordance therewith. Since in this matter the War Departnlent sought anld received the services of the Department of the Interior, and the information of the writer regarding the subject is confined to that received in lnaking the investigation necessary to prepare this report, I naturally hesitate to offer recommendations, and would not do so were it not that the Secretary of the Interior in his letter to the Secretary of War (which occasioned this report) says he " would prefer an expression of your [the Secretary of War's]. views in the matter before naking any reply to the inquiries on the subject contained in Mr. Morel's letter." I therefore saubmit, with deference, a recommendatioln that a lnew order regulating said matters be issued. A dlraft of such proposed order is hereto:attached. I take the liberty of suggesting that if said (Iraft of such proposed order favorably imlpresses the Secretary of War it should also be submitted to the Secretaryv of the Interior for his views thereon,before adoption and promulgations. The views set forth in the foregoing report were appiroved by the Secretary of War and connulnicated by himI to the Inferior Department; that Department concurred therein kand on June 4, 1901, the report was coInmlunicated to the military governor of Cuba, who thereupon issued the following order (see G. O. No. 10;I), Hdqrs. Dept. of Cuba, series 1901): No. 160.] ]-[IAI)DQUARTEIS I)EI'ARTMENT OF CUBA, Ilabana, June 13, 1901. Under instructions from the Secretary of War, the military governor of Cuba directs the publication of the following order: 1. The rights of property in patents, copyrights, and trade-mlarks, duly acquire 313 inl Cuba, the Isle of Pines, and the island of (aina, pursuant to the prnvisi(,. us f Spanish law and existing in one o)r all of said islands ott April 11, 1 899, shall continue unimpaired for the perio fohihtvwr -rned, anti the owner o)r owners thereof shall he p~rotected arnd their rights therein aitintainedl P-Yroided. That the origyinal o)r a dufly certifiedl copy o)f the ltatenlt, o)r of the certificate o)f registratiolt() the trade-mark or copyvrightt, is filedl in the office of the governor of tie ishland wherein such protection. is tlesire(l. The certificates of registration of tradle-ntarks issuied pinr to) April 11, 1899, by a Spanish provincial registry, o)r the niational registry o)f S'pain at 'Madrid, o)r the international registry ait the ilurean o)f the union for the protectiont of indus.trial property, at B~ern, SwNitzerland, shall receive such recognition andl credlenice as were accorlded them in sail is:lands un(Icr Spanish so(vereignty; anil an) original certificate or (lilly certified co)py thereof shall lbe receive(l andI filed in the o)flic(e of the governo~r ( f the islandl for all purioses, conniected wvith this, ordler, w\ithoutt further o)r other certiticationt. 2. The rights o —f p)roperty in patents, includling diesign patents, granted hv the United_- States, and in trade-miarks, prinits, and labels, dutly registered iii the I litedl States Patent Office, and in copyvrights dufly registered in tie o)ffice( of the Librarian. of Congress, shall he maintained alidplrotected by the governinent of civil affairs in thle island1s above namnel: Provided, That a duly certifiedl copy of the ipatent, o)r o)f tile certificate of registration of the copyvright, trade-inark, plrimnt, or label, is filedl ini the office o)f the governor of the islaind wherein such plrotection. is dlesiredl. 3. Ani infringement of the rights p~rotect~ed by compiliance with the. prn visioiis 14 this order s-hall. subject the flerson, firmi, association, or corporation guilty- (f Such infringement to the civil andl plenal. liabilities created and~ imnposedl ly such o)f the laws of Spain relating to saidl matters as remain iii force iii sail isiamils,. 4. S4uch provisions of existimig, orders as are ini coniflict with. this, ordler are hereby revoked. AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION OF TRADEMARKS, CONCLUDED AT MADRID APRIL 14, 1891. I Concluded ait Madri(d April 14, Is~l, between Belgiumn, Franice, Spain, Switzerland, andI Ti in i~.] IThe undersigned plenipotentiaries of the States above enumerated, in view of tarticle 1.5 of the initermiationati conventiomn of MIarch 20. 15883, for the protectioni of industrial p)roperty, have, wvith one accord and subject to ratification, concluded the following (agr-eement: The subjects or citizens o)f each of the contracting 'States may secure in all. of the other States the protection. of their trade-m-arks accep~tedl at the depository in thle country of origin by means of the dieposit of the said niarks, at tile international hureall at Berne, inadle by the intervention of tile Government (f thle sail col)lntrv of origiml. ARur1_icE: 2. Are assimilated to the subjects or citizens of the contracting States, the,subjects or citizens of states which have not adhered to the present agreement who fulfill the conditions of article 3 of the convention. 314 ARTICLI, 3. The international bureau shall immediately register the marks deposited in accordance with article 1. It shall give notice of this registration to the contracting States. The registered marks shall be published in a supplement to the journal of the international bureau, either by means of a cut or of a description presented in the French language by the depositor. In view of the publicity to be given to the marks so registered in the different States, each Government shall receive gratuitously from the international bureau such number of copies of said publication as it shall see fit to demiand. ARTICiE 4. Fronm the time of registration so made at the international bureau, the protection in each! of the contracting States shall be the same as if the mark had been directly ldeiosite(d therein. ARTICLE 5. In the countries where their laws to authorize, the Governments to which the international bureau shall give notice of the registration of a mark shall have power to declare that protection can not be given to such mark within their territory. They shall exercise this right within a year from the notice provided for by article 3. The saild declaration thus made known to the international bureau shall be transmlitte(d )b it without delay to the Governlent of the country of origin and to the owner of the mark. The interested party shall have the same means of redress as if the mark had been deposited by him directly in the country where the protection is refused. ARTICI.E '6. The protection resulting from the registration at the international bureau shall continue for twenty years from the date of registration, but can not be invoked in favor of a mark which has ceased to enjoy legal protection in the country of origin. A1TICLE 7. The registration can always be renewed in accordance with the provisions of articles 1 and 3. Six mlonths prior t.) the expiration of the term of protection the International Bureau shall give an official notice to the government of the country of origin and to the owner of the mark. ARTICLE S. The government of the country of origin shall fix, in its discretion, and receive for its own profit a fee, which it shall collect from the owner of the mark for which international registration is demanded. To such fee shall be added an international fee of 100 francs, the annual proceeds of which shall, under the supervision of the International Bureau, be distributed equally between the contracting States, after deduction of the comlmon expenses necessary to the execution of this agreement. ARTICLE 9. The government of the country of origin shall notify the International Bureau of annulments, cancellations, abandonments, transfers, and other changes which occur in the right of ownership of the mark. The International Bureau shall register these changes, shall notify the contracting Governments thereof, and shall immediately publish them in its journal. 315 At'rTIcILE 10. The Governments shall regulate 1b comlmon consent the dletails )ertailiing to the execution of the present agreemlent. ARTICLE 11. The States of the Union for the Protection of Industrial Property which have not taken part in the present agreement shall be admitted to adhere thereto on their application and in the form prescribed by article 16 of the convention of March 20, 1883, for the protection of the industrial property. As soon as the International Bureau shall be informed that a state has adhered to the present agreement it shall address to the government of the state, conformably to article 3, a collective notification of marks which at that time enjoy international protection. This notice shall of itself secure to the said marks the beiiefit of the foregoing provisions in the territory of the adhering state, and shall cause to run the delay of a year, during which the interested government can make the declaration provided for in article 5. kARTICLE 12. The present agreement shall be ratified, and the ratifications sliall be exchanged at Madrid, within a period of six months at the latest. It shall take effect one month after the exchange of ratifications, and shall have the sanle force and duration as the convention of March 20, 1883. In witness whereof the plenipotentiaries of the states above nalmed have signed the present agreement at Madrid April 14, 1891. FINAL PROTOCOL. On proceeding to the signature of the agreement concerning the international registration of trade-marks, concluded this day, the plenipotentiaries of the States which have adhered to said agreement have agreed as follows: Doubts having arisen on the subject of the meaning of article 5, it is clearly understood that the right of refusal which that article leaves to the Governments does not affect the provisions of article 6 of the convention of Marcl 20, 1883, and of paragraph 4 of the final protocol Which accompanies it, these provisions being applicable to the marks deposited at the International Bureau as they have been and still will be to those deposited directly in all the contracting countries. The present protocol shall have the same force and duration as tile agreement of which it formls a part. In witness whereof the undersigned pleniotelltiaries have signed tlhe present protocol at Madrid the 14th of April, 1891. 316 IN RE NOTE OF THE IMPERIAL AMBASSADOR OF GERMANY AT THIS CAPITAL TO THE SECRETARY OF STATE, COMPLAINING OF THE REGULATIONS AND RESTRICTIONS OF TRADE WITH THE INHABITANTS OF THE SULU ISLANDS, IMPOSED BY THE MILITARY GOVERNMENT OF THE PHILIPPINE ARCHIPELAGO. THE CORRESPONDENCE BETWEEN THE UNITED STATES CONSULGENERAL AT SINGAPORE AND THE IMPERIAL CONSUL OF GERMANY AT THAT PORT, REGARDING THE CLOSING OF THE PORTS OF THE SULU ARCHIPELAGO TO FOREIGN COMMERCE, BY ORDER OF THE COMMANDER OF THE UNITED STATES MILITARY FORCES IN THE PHILIPPINE ISLANDS. [Submitted October s, 1900. Case No. C-850, Division of Insular Affairs, War Department.] SYNOPSIS. 1. The Imlperial ambassador of Germany at this capital makes tne claim tllat the military governmlent of tlle Phiilipines is without authority to regulate, restrict, or prohibit trade with the inhabitants of the Sulu Islands; andl in support thereof advances the following propositions: (a) The United States did not acquire sovereignty over the Sulu Archipelago by tlhe conquest thereof, nor was sovereignty thereover confirmed unto the United States by the treaty of Paris (1898), for the reason tlhat Spain had never acquired sovereignty in said archipelago, nor was Spanish sovereignty therein recognized and internationally established. (1) The provisions of the protocols entered into by Germnany, Great Britain, and Spain, of date 3March 11, 1877, andl March 7, 1885 (Martens, Non. Rec., 2d series, vol. 2, p. 280; vol. 10, p. 642), constituted a grant creating a perpetual easemenlt in favor (of (iermanyi, (reat Britain, and the other powers, which is a servitude poln the Sulu Archipelagzo, diminishes the fee thereof, and remains attached thereto. (c) If the rights secured by (lermnany, Great Britain, and the other powers by said protocols are not vested by a grant, then they are rights derived from a contract between the respective sovereignties of Spain, Germany, antd Great Britain, which contract was in force at tlle time the United States acquired sovereignty over said archipelago, and the obligations of said contract, incumblent upon Spain, passed to and becamle binding upon the United States. 2. If these propositions ain the claimns )ase(l thereon are advanced on behalf of the German Government, the controversy involves an international complication between Germany and the United States. In such matters the State Departlnent has exclusive jurisdiction as to tlhe interests of the United States. 3. If this claim is asserted for and on behalf of an individual or private concern and is intended to be addressed to the military government of the Philippines instead of to the Federal Government of the United States, that fact does not divest the matter of its international character, and it must be considered as not a proper subject for discussion by the officials of the military government or the War Department. 4. The military government of the Philippines anti the War Department are bound to aid the State Department in controversies of this character by furnishing such knowledge and information in respect thereof as they are able to secure. 317 5. The regulations, restrictions, and plrohibitions resp)ecting trade in the Sulu Isla(lds, of which comlllplaint is mla(le, were a(lopted as war measures reluired 1by thle mnilitarv necessities of the situation. The! are not to be collsid(ered as establishing the permanent policy of the United States when the conditions of peace shall prevail in the archipelago. 6(. Sovereignty over the Sulu Islands prior to tile treaty of leace (18S98) was vested in the Crown of Spain, an(l was niot participated inll! (;eriianv and reat Britain. 7. The sovereignty of the lUnitel States over said( islands is c(omlplete an(l excluS( ive. SIrl: I have the honor to acknowledge the receipt of your request for a report on the above-entitled matter, and in compliance therewith I have the further lonor to report as follows: The mlatter as lnow presented to this Department larises froll the following' state of facts: The ((1er'nian consul at Singapore, acting on behalf of certain (;erman nlerchants who desire to tra(le with. the inhabitants of the Sulu Islalnds, requested the United States consul to inform him if such trading' would be permitted by the U-nited States authorities, and was informed that it would not be. permitted. The correspondene between the two consuls on this subject appalrentl- ceased with the exchange of these two letters. Sublseqluently the State Department forwarded to thei War I)epartment }a translation of a note frolml the German amnl)lassador at this capital relalting to the same latter. (I)oc. ), 7, 8.) The complaint llade i) the Ger;lman allml)assador questions the sovereig'ntv of the United States over the islands of the Sulml Archhipelag o. The refeirence of said questionl by the State DeI)lpartment to the War Deparltlllent involves the questioni of jturisdictionll ib the War I)epartmeilt to pass thereon. The nlote of the (German a blllabssador is as follows: IMIPEIAI;\I (E;ERA SN EMJAssY, IVashi gtooi,.Jol!d 31, 1900. Ir'. SEcREr'i- ()OF STrATE: The military governor of the P'hilippines ordered( in the fall of last vear' that tile harbors of the Sulu Archlipelago remain closed to foreign (commnlerce until the issuance of special regulations. As shown by the inquiries made of hilll ill the matter, he lhel(d that this measure was warranted tbecause, illn is opinion, the arrangements concluded by Spain, Gerilmany, an(l Englan(l ii the p)rotocols of 'March 11, 1877, an( Marchll, 1885 (printe(l illn Martens. Non. Rec. G(en., 2(1 series, Vol. II, 1p. 280; Vol. X., p. 642), were extinct b1! reason of the transfer of the sovereignty over the Sulu Archipelago to the United States under the Paris treaty of p1eace. Inl the meanwhile, foreign trade has, to be sure, been again permitted to a certain extent in the Sulu Archipelago, but the existing conditionis are different from those whlich obtained under the above-named protocols during the Spanish regime, especially in that the coastwise trade is forbidden, that the foreign trade is allowed not with all ports, b)ut only with such as are occupied by American troops, and even then, barring some designated ports, with a permit fronm the Americani military authorities, and, finally, that in the opel ports foreign commlerce is subjectedt to differential customls treatiment. The restraint thus imlllposel upon (ernman trade has been the cause of complaints froml the firin Behn, Myer & Co., of Singapore, which had previously built up quite 318 a trade with the Sulu Archipelago. The Norddeutcher Lloyd has likewise lpetitioned in behalf of German commercial and shipping interests that the neccis ary steps be taken to restore previous conditions. The p)reponderance of opinion among leading expounders of international law is to the effect that agreements between States which have merely a local app)lication are not affected by a change of sovereignty over the country to which they apply on this one ground. (;eneral Otis's standpoint on the present question seems to l)e untenable. But apart from this consideration, the circumstances ulnder which the protocols of 1877 and 1885 were concluded leave no doubt that their continuance under the new American rule would l)e but consonant with the principles of equity and international law. The negotiations which led to the conclusion of both agreements clearly show that, nottwithstanding her treaty with the Sultan of Sulu, Spain did not acquire sovereignty over tlhe archipelago, or, in any event, that such sovereignty was not recognize(l and internationally established. The Imperial Government jointly with England have therefore lodged withl the Spanish Government a reservation against any letriment to our flag and people worked by actual assumption of sulch unsanctioned sovereignty. Spain was then constrained to acknowledge in a note laddlressed to the English representative at Madrid, under (late of April 15, 1876, " that tile relations which may exist between Spain and Sulu do not give a right to either State to prohibit or interfere with the direct traffic of British subjects or other foreigners with the ports of the said archipelago, which traffic ought to be and shall be respected in accordance with the principles of international maritime law." The sovereignty of Spain over the Sulu Archipelago is recognized de facto in the first protocol and de jure in the second, only because Spain bound herself not to use her authority to the detriment of our commercial interests therein. Recognition is, in the intent of the protocols, joined to the proviso that our navigation and trade in the Sulu Archipelago shall remain free from restriction and molestation, and especially so from any differential treatment. There was thus laid on the Spanish sovereignty iover the Sulu Archipelago a certain limitation that has not been thrust aside by the transfer of the sovereignty to a lawful successor to Spain. The English Government has also taken the same standpoint in the matter, for the government of the Straits Settlements colony has by its communication to the American consul-general at Singapore, printed at pages 1332-1333 of the Government Gazette of March 25 of this year (herewith inclosed with a request that it be returned), entered its protest against the United States exercising in the Sulu Archipelago any rights more extensive than those which appertained to Spain. I have the honor to draw Your Excellency's attention to this matter, and I have no doubt that the Government of the U nited States will not refuse to acknowledge the rights secured to us by the respective protocols. I venture, moreover, to point out that the position of the American government of the Sulu Archipelago is in manifest contradiction of the declarations made in writing by the American Coinmissioners of the Peace Conference in Paris (" being the policy of the Unitedl States to maintain in the Philippines an open door to the world's commerce "), printed at pages 210, 218 of the American Congressional document, as well as of the principle of the " open door" proclaimed by the Government of the United States concerning Eastern Asia. Awaiting your kind answer, I avail myself of this opportunity to renew to Your Excellency the assurance of my distinguished high regard. HOLLEBEN. (See Doc. No. 7.) If I rightly understand the note of the Imperial German ambassador, he therein advances three propositions: 1. The United States did not acquire sovereignty over the Sulu Archipelago by the conquest thereof, nor was sovereignty thereover 319 confirmed unto the United States by the treaty of Paris (1898), for the reason that Spain had never acquired sovereignty in said archipelago, nor was Spanish sovereignty therein recognized and internationally established. 2. The provisions of the protocols entered into by Germany, Great Britain, and Spain, of date March 11, 1877, and March 7, 1885 (Martens; Nou. Rec., 2d series, vol. 2, p. 280; vol. 10, p. 642), constituted a grant creating a perpetual easement in favor of Germany, (Great Britain, and the other powers, which is a servitude upon the Sulu Archipelago, diminishes the fee thereof, and remains attached thereto. 3. If the rights secured by Germany, Great Britain, and the other powers by said protocols are not vested by a grant, then they are rights derived from a contract between the respective sovereignties of Spain, Germany, and Great Britain, which contract was in force at the time the United States acquired sovereignty over said archipelago, and the obligations of said contract incumbent upon Spain passed to and became binding upon the United States. If these claims are advanced for and on behalf of the sovereignty of Germany and are addressed to the sovereignty of the United States, then the controversy is between said sovereignties and relates to their respective sovereign rights. Such matters pertain to the foreign relations of the United States and are dealt with byi the Federal Government, acting through that Department of the executive branch to which our foreign relations are committed. If this be the situation, then, in the opinion of the writer, the questions are outside the jurisdiction of the War Department. If these claims are advanced on behalf of an individual or a private interest, for the purpose of sustaining the exercise of an individual or private right in territory subject to the jurisdiction of the lilitary government, which said exercise relates to the administration of government in said territory, a different situation is presented, and, in the opinion of the writer, the military government might then possess jurisdiction. The Acting Secretary of State, in his letter to the Secretary of War, states the purpose of the reference to be "for your consideration and examination of the question raised." (Doc. No, 6.) It is to be noted that said expression of purpose does not include "dcetermination. " The attention of the Secretary of War is directed to this omission as being an indication that the State Department entertains the opinion that the question involved in the note of the German ambassador is not within the jurisdiction of the War Department in the sense that it is to be determined thereby. In closing his letter the Acting Secretary says: I shall be glad to transmit to the embassy your reply to its expression of the hope that the military orders of which complaint is made will be rescinded. (Doc. No. 6.) 320 Examination of the questions involved is therefore made, that the Secretary may determine what he will include in a reply which is to be transmitted to the German embassy. Apparently the first question presented by this communication is, In +what capacity does the German ambassador make complaint? Is the complaint to be considered as that of the Imperial Government of Germany? Or, is it to be considered as the complaint of individual shippers? I consider it important to have a correct understanding as to who makes the complaint. The challenge of the sovereignty of the United States therein contained, if made by an individual, differs materially from such a challenge made by the Imperial Government of Germany. It is doubtful if the United States would feel called upon to discuss the iights of sovereignty in the Sulu Islands, or the limitations thereon, with an individual of a foreign state, even through an ambassador as an intermediary. But when the question is presented by the.ov,0'er',ic lt of a foreign state, the discussion is not to be avoided. In the letter of Hon. William McKinley, accepting the nomination of the Republican national convention of 1900 for President of the United States, appears the following: Our title is good. Our peace commissioners believed they were receiving a good title when they concluded the treaty. The Executive believed it was a good title when he submitted it to the Senate of the United States for its ratification. The Senate believed it was a good title when they gave it their constitutional assent, and the Congress seems not to have doubted its completeness when they appropriated $20,000,000 provided by the treaty. ** * * * * It i.s' orthyi of note that no one outside of the TUnite(d States (lisp. tes the fdln1ess atnd imteyrity of the cession. The note of the German ambassador does not state that he has been instructed by his Government to present the complaint or raise the question involved. Presumably, however, he would not act in such a matter upon his own initiative. The Acting Secretary of State, in transmitting the note of the German ambassador, refers to said note as one " in which he protests on behalf of the commercial interests of his country." If we consider this complaint as made by the Imperial Government of Germany, the question arises: To whom is this complaint addressed? Is it not to the Federal Government of the United States? The controversy then stands thus: The Imperial Government of Germany complains to the Federal Government of the United States that the military government of the Philippine Islands, a government dependent upon the Federal Government of the United States, is persisting in action not warranted by the rights and powers of the United States in that territory and in violation of rights possessed by the Imperial Government of Germany in that territory. Such controvery involves the foreign relations of the Federal Government of the United States. If so, it does not seen proper that the military government of the Philippines should attempt to handle and dispose of such questions. 321 Even if the matter is presented to the President, he will act thereon as the Chief Executive of the United States and not as the head of the military government of the Philippines; for the ilportanlt question is, What rights were secured to the United States )by the conquest of the Philippines in the war with Spain and confirmed by the treaty of IParis? Sovereignty in the Philippines was ((cq'r//;',d lb the Unlited States and now 7belonqgs to the United States. It is bleing ii'('r9'.d by the military government of the islands. The reference from tlhe State Department presents the ilnqluiry, Shall such exercise extend to the determination of questions involving the foreign relations of the United States arising in said territory? To state the question in another form, Shall foreign States presenting questions regarding the foreign relations of the IUnited States, arising out of the acquisition of the Philippines, be referred to the military government of the islands? Primarily the question raised by the note of the German ambassador is, Was Spanish sovereignty in the Sulu Islands limited, and is the sovereignty of the United States likewise limited therein? Secondarilv the question arises, Does such limitation, if it exists, continue in territory affected by an armed insurrection? These are questions of grave importance to the sovereignty of the United States and appear, to my mind, as necessarily to be dealt with by the Federal Government. To permnit the military government to determine them for the United States would, seemingly, reverse the relationship now borne )b each to the other. I do not wish to be understood as reporting that the military govern'ment of the Philippines is without possible authority or warrant to determine these questions. That government is exercising sovereignty in the territory subject to its jurisdiction. I am seeking to direct attention to what seems an extension of such exercise beyond the limits heretofore observed. The line of demarcation appears plain to me. It is the line that divides the individual citizen of a foreign government from the State or Government. To illustrate: The military government is now permitted to impose tariffs on goods brought into its jurisdiction; but should it also be permitted to enter into a treaty with a foreign State regulating trade between such foreign State and the Philippines? Tariff schedules, rates, and regulations deal with private property and individual rights, and pertain to the local administration. Trade treaties deal with the rights of nations and pertain to the broad field of international relations. The military government is admitted to have authority to give a French navigation company the right to erect a wharf in Manila Harbor, but should it be admitted to possess the authority to give the French Government the right to erect a fort therein? In short, should the Military Government of the Philippines be considered as authorized to sustain foreign relations independent of the Federal Government of the United States? 1394-03 21 322 In the instance utnder consideration, if the German Government asserts the right of unrestricted trade in the Sulu Islands as a right belonging to its sovereignty, the controversy rises to the dignity of international relations sustained by the sovereignty of the United States with the sovereignty of Germany, and addresses itself to the Federal Government, and should be dealt with by that branch of the Federal Government to which our foreign relations are committed. If this view is correct, it would seenm that the service incumbent upon the War Department is to furnish all facts and information relating to the (Iquestion to the State Department for its use in conducting the negotiation. The United States being engaged in suppressing a armed insurrection in a portion of the Philippine Archipelago of easy access from the Sulu Islands, must of necessity consider any question affecting the military situation as paramount to all questions of personal right possessed by an individual or a nation. If there exists a military necessity for closing the ports of the Sulu Islands, or any of them, to commerce, it is incumbent upon the United States diplomatic corps as well as the army corps to provide for such necessity. If the claim lnow advanced, supposedly in behalf of the Imperial Government of Germany, be well founded, it may be advisable to invoke the comity of nations by requesting Germany to forego urging said complaint at this juncture. An appeal to the co, ity of nations made by a war department or a military government would be incongruous, at least. Whether or not there exists a military necessity for maintaining the existing regulations of trade with the Sulu Islands is a matter to be determined by the Secretary of War, upon his knowledge of existing conditions, and is outside of the purview of this report. For the convenient use of the Secretary of War the following facts are set forth: The ports of the Sulu Archipelago, with others of the Philippine Islands, excepting Manila, Iloilo, Cebl, and Bacolod, were closed to foreign commerce by the following order issued by Admiral Dewey in May, 1899: By the direction of the commander in chief United States naval force on the Asiatic Station: All trade with the Philippines is prohibited, except within the ports of Manila, Iloilo, Cebli, and Bacolod. Ships are hereby warned to go nowhere else in the Philippines. The attention of the Secretary is also invited to the statement of facts contained in the following copy of a communication from Rear Admiral George C. Remey, commander in chief, United States naval force on Asiatic Station, addressed to the Secretary of the Navy: OFFICE OF' THE COMMANI)ER IN CHIEF, UNITED) STATES NAVAL FO}R(E )N ASIATIC(' STATION, FLAGSHIP BROOKLYN, Carite, JP I., June 14, 1900. SIR: Referring to the Department's telegram of the 12th instant, inquiring "Did Admiral, about Mlay, 1899, prohibit trade in the Philippines except with ports of 323 ailIloilo, Cebui and Bacolodl? ***I have the honor- to aiil~ify hiere mly telegraphic reply of the 133th instant, which was: ''Files show that Admniral in Mi~av, ninety-nine, forbadle all trade not in American possession, especially in the islands Samar, Levte, andl Ceb'il. Vessels found in insurgent lports with regular clearances lprevionsly granted 1y American authorities, ordered to cease loa(inig or discharging anld (depart immnedliatelv.'' 2. Quoting, from the. papers onI file, _April 24, 1899., the com-mander iii chiief wNrote to thle military governor: ' **I am now trying- to p~revent all supplies reaching the insurgents' from Manila, and have several ships and boats engaged breaking up that tradle. ''I holpe that, no ships are beiiig clearedl f rom this port for ports in the, south not in our Imssessioin, as all the information makes it c nehisive to my mind that they are anl aidl to the insurgents 1)0th in quppllies anid information. I intendl to do everytlhiig in my power to break up this trade.''* And onl May 7, 1899: ' **I miu'st again remiimil von of the damage (lone to our cause by tle, captains of thme ports of Iloilo andl 0Ceh clearing vessels for ports in the possession of the iiisirgreits Thle cap~tains of tevesseis onl atrol duty are coinstantlyv rngi to mv atteiition thie (liflicult\v of stoJppinig trathie between insurgent ports while this practice continues. ''If we are to see the end of this struggle dluring our lifetimes, 1 (all iiot uarge too strongly that orlers be given to clear no vessels except between ports in our lpossessioii, as I am conivincedl that nlearly- every one of the vessels, engaged in tra(le with inIIsurgenit ports is carrying aid aimil comfort to the eniemv. **InI thle meantime I shall continue to (10 everything iii my power to break up all coimmunicatioii between the insurgents by waterl.' ):3. M.\ay 9 thie coinmmander iii chief telegraphedl to the (Ostoti at Iloilo: ''Rleturn to Saumar anid prevent all tradle.'' Ammirl May 14: 'Congratulations onl your goodl work. E"xtendl it to Leyte aind Cebhd. Military governor has given orders not to (lear vessels to) anyv port not in our possess-ion. Turn prizes anid prisoners over to Sperry. Thie prizes should be secured in the river. Let the crew go.'' 4. _May 17 the coimmandling (thicer of the Y-orktoir)n telegraphed thle coimmander in chief, ev-idently referring to thie telegrams jus,,t (quoted: ''I understand f rom youer telegrams to Very that all traler is to be lpreventedl with ports iii Samar, Leyte, and Cebui not. in ouar possessionl, andl that vessels which meay be found in such ports with regular clearances p~reviously grantedl by our authorities are to be ordered to (ease loading or dlisch-arging and (lepart. JDo these instructions extend to all 1Philippinle lports not in our possession, andl are thiey to be given to cruisers calling here?" IJis uiiderstanding of the coinmian~ler in chief's orders was cojifirined the samne day as follows: "Sperry, Iloilo. Your interpretatioii of ordlers regardling shipping is correct. Grive ordlers to other vessels. (hmrlt~stou will leave to-morrow or next day for Iloilo. (Sig.) DiEwl"y." And thereupon the commanding otlicer of the, Yorktown), as senior officer present at Iloilo, issued the following instructions, dlatedl May' 17, 1899: '(1) InI accordaince with telegraphic directions of the commander in chief, (lated May 17, 18919, the commanding officers of vessels will be governedl by the following instructions: " (2) All trade with Philippine ports miot in the possession of the United States authorities is to be lureveilted, particularly with such ports. in t~he islands of Saniar, Leyte, and Cebilm. 324 ''(3) Should any vessels lbe foundl in lports which are in the possession of the hinsurgentsi with regular clearances heretofore grantedl 1y the UnitedI States authorities the- 'will, le or(lere(I to cease loading, or dischlarging immledIiately anid depart.'' 5. The foregoing extracts appear to lbe the most lpertinenit of all mnatter on file. A teleg~ram of M1ay 18 froin the, commandier inl chief to the commanidingy officer- of the Yor~ktowo may lbe included: Vessels allowed to clear for 1P )rts ini our poss-ession; comnnanding ofhicers use (lis(Tetion.' As also part of a letter, drated -May 26, from Captain Barker, as comumandler ini chief on the sotation, to the commanding oflicer of the Prowetoni: ***2. Your observations upon the (lesiralbilitV of keep~ing up a str-ict blockade expresses exactly my own views, and( Admiral Dewey was of the same mimI. 3. Ordurs to enfiorce' a strict blockade of ports in pos-sessiomn of the insurgents were given some time ago." A n~mmber of 1 apers in the files overhauled in the frearch for the information here furnished hid~icate that commuauning-, officers., often actedl under oral inistructions,, only, of which there is no recordl here. Very respectfully, GIEo. C. REMEY, 1:em-.. I(hiiinl, U(0ited AY(d(t(5 i\(wq', Commi~aiader hi Chief. The SECRETARY OF THE NAVY, Ya ry Depoirtmeot, 1Vmsh ingion, 1). C. (Ru re(mt oJ iXarigatioii). The order issued bv Admiral Dewev has beeni continued in force by the, Commn-ander in Chief of the Armyll anid Navv of the United States, presumab~ly fromt continued necessity, anid certainly by the exercise of powers not subject to question by the 'Subordinate departments of this Government. Certain modifications of this order have been made authorizing coastwise trade with certain ports of the islands. Presumably, these orders grant the largest liberty of trade permitted by existing military necessities. Said orders are as follows: GENERAL ORDERS, OFFICE OF THlE UNITED) STATES MILITARY GIOVERNoR IN THlE PHILIPPINE, 1SLANDS1 No. 30. ) 3rvi(ld, P. J., M1arch 10, 1900. For the immediate relief of the native inhabitants of the Jol6' Archipelago, who have heretofore been grantedl free trade privileges and who it is reported have suffered materiallyr during the past year fromt loss of cattle and a consequent minimuin supply of native food products, the prescribed customs dues on the importation of cattle, articles of food, petroleum, tobacco, matches, clothing and articles for use in the mnanufacture of the same, sewing machines, agricultural implements and machinery for use in prepairing lprodlucts of the soil for home consumptiomi or export, are suspended until December 31 next, p~rovidled such articles of consumption, tradle, or merchani(lise are owned, imported, and handled by the native inhabitants of the islands, andl that all business connected therewith In the islands is conducted by and lbctween these inhabitants. The MNoro inhabitants of the islands will also be permitted (luring, the present year to export free of duty all products of the soil-they being solely concerned in person and interest in handling and slmipping the same. The present existing provisional customs tariff and regulations will remain in force in that archipelago in all cases of importation or exportation in which other than natives are in any wise interested, whether as principals or agents. By com-mand of Major-General Otis: M. BARBER, Assistant A qjutant- General. 325 GjENERAL ORDEWS7 OFF'I(E 01? THiiE UNITED) STATES 'MILITA-RY (vuolIN THlE iP1Il1iPPINE ISLANDS, N o. I -Imoo/o, iP. I., IDecemober 26, 18994. I. Trade and commercial intercourse with the lports of the Stiliu Archipelago., with those of Zamboanga, (Cotabato, and JDavao, of the, islandl of 'Mindanao, and with the islani of Blasilan will 1)e reestablished uipoii the receipt of this order at the various ports affected, the samec to be prosecuted undvr thle customs regulat~ions, adopted andl~ p)revailin1g in other sections of the Philippines. Thle ports of Zamiboanga, \IiiidanaoJ, islandI of Job,(' a~nd Siassi, island of S,~iassi, are (declared to be open ports, for the time lbeing and( wviii receive the necessar-yeup ment. The commandling general of the dlistrict of M-indan~ao and Job) will. designate and appoinit collectors and inspectors of (custonls;, subject to thle approval of this, thfee, and will. cause to lbe dctailed su1(h assistants as, ioay lbe necessary. At, ports where, the services of calptains of ports are dlemandedl thle samue officers wvill perform the dluties of both collectors of customs anti port~ captains. The treasurer of the is~-lands-, thle collectors of customs, andl the captain of thle port. of Manila will. sulpplv thle vanious officers, appointed with all orders, circulars, books, blanks,, and( instructions; neces~sarv to guide themi ii thle performance of their dut1ies. 1H. The commtlanding genteral of the district of ]Xind~anao a~n(l. Job(' will appoint, subject to tile approval of this otlice, collectors~ of internal revenne for the various more imptiortant towns anl (listricts xvithin his, command. Tue col~lector of internal revenu-e, at Manila will furnish upon application all books, blanks, cir:culars, orders and in~stru~ctions an(l. blank cedulas required by them to execute the labors ()f their oli ce. Ix')\ commuanol of ii\Iajor-( ioneral ( )tis: Assis/oaht Al10(I offi- (, opelt. The suliu Islands arc n10w S~tlljeet to muilitary occupation, and the affairs of civil grovernmien~t -are conuitcted bv at inilitariv go0vernnient. Regarding. tim author-ity of a mnilitary goverunmenit to regutdate tratdewith the inuhalutantsl- of territory Subhject to its jurisdiction, Birkhlimer says, (Mfilitary (,iovernmniet and Martial Law, p). 204): One of tle utost. impulort~ant inciolentts of military government is the regulation of trade with tihe subljugatcd (listrict. The occupyingr state has an unquestioned right to regulate comomercial intercourse with conqlueredl territory. It may be ahsolu tely proltilite~l, or permiutted to lbe un~restrictedl, (r such1 limtitations ma" ic imoposed thereonl as either policy or a proper attenltion to military measures ioav justify. While, the victor maintains- exclusive p (ssessiolt (f the territory his title is valid. Therefore the citizens of n1) other nati 11 have a right to enter it -without the permission of the domnuiantt p over. M~uch less, c-ai they claimi anl unrestrictedI righ t to trade tlhcrcini. In Flemino, c,. Pare, 9) How., 6dI, the Unitedl States, Suprenme Court 'sa: It is true thlat, wvhein TIamplico had becin snbjugated, other nations wvere bound to regardl thle country, -while our possessions continued, as tite territory of tile Unlitedl States, a1tl~l to respect it as slicil. ** The citizens of no other nlatioll, therefore, had a right to enter it -without tie permtission of the American authorities, nor' to 1101( intercourse with its inhlabitanlts, nor to trale with them. (S'ee also, American Instructions to Armies inl tie Field, sev. 5, clause, I;Blunlts-chili 1, sec. 8; 'Manning, p). 1(67.) 3286 In passing upon the question of military necessity, the Secretary of War will probab)ly desire to know to what extent, if aniy, adequate provision for such a necessity would infringe upon the actual rights of Germany under the protocols to which the ambassador refers. The attention of the Secretary is respectfully directed to declaration 1 of the later of these protocols, dated March 7, 1885: 1. The (Governments of Germany and of Great Britain recognize the sovereignty of Sp)ain over the places actually occupied, as well as those which are not yet so, of thle Sulu Archipelago (Jolh), whereof the limits are established by article 2. The consideration of this recognition of sovereignty is set forth in declaration 3 of said protocol as follows: The Spanish Government abandons, in favor of or toward the British Government, all pretenses of sovereignty on the territories of the continent of Borneo which belong to or have belonged in the past to the Sultan of Sulu (Jol)), including the islands of Balaibllangan, Banguey, and Malawaii, as well as all those islands included in a superficies of thlree mnaritime leagues alongside the coast, and make part of the territories aduministered b)y the British North Borneo Company. The question of sovereignty beinlg thus determined, Spain, in the exerc(ise of sovereignty over said territory, gave the following '' pledge" (declar(ation 4): The Spanish Governient pledge themselves to enforce inl the archipelago of Sulu (Jol') the stil)ulations contained in the articles 1,2,.3 of the protocol signed at Madrid on thle 11th of AMarch, 1877. 1By said article 1 of declaration 4. Spain granted the right of trade and direct traffic with the archipelago, and the right of fishing in the waters thereof, to the "t vessels of the subjects of Great Britain and Germany and of the other powers * * wtholut ),ej/a(lie to the rqi(/;tx r, (,co) Ri-2cd to SqA)y/i by the present protocol." The ' rights " recognized by said protocol were those constituting sovereignty. The privileges of trade andl fishing so stipulated were to be exercised "according to the following declarations." By article 2 of declaration 4 it was stipulated that in future the vessels or the subjects of Great Britain, Germany, and other powers might engage in trade ' froml one point to another point of the said archipelago, or from that archipelago to any other part of the world," without calling, before or after, at some designated point, or 1)aying any taxes or securing permission to trade from the authorities of Spain. It was stipulated in said articlethat the Spanish authorities will not interfere in any manner nor under any pretext with the free importation and exportation of merchandise of every description without exception, reserving the points occup)ied and in the limits of declaration 3. (Declaration 3. relates to Borneo and adjacent islands, to which Spain released its claims of sovereignty.) It was further stipulated in said article 2 of declaration 4 -that on all points not actually occupied b!y Spaiin, neither the vessels, nor the subjects hereabove mentioned, nor the goods, will be subiect to taxes, duties, or payment of any sort, nor will they be subject to regulations, sanitary or otherwise. 327 Article 3 of declaration 4 provides ais f ollows: 3. lJo the pla(ces oC(ciW~q ie Sy 1a(in io the archipelaqo of Solu (foi6) the AS~jaaish. Got.eminent wlill be ait liberty to establish. taxes,, sanitary 0o' other' regOlatioii (hiring the thime of the actual occupation of the sail Iplaces. But, on the other sidle, Spain pledges herself to keep) the establisheiicts and the staff necessary according to thie wants of tradle andi for the carryinig out of the, regulations.It is nevertheless expressilv ouderstood, and( the-_ Spanish Gioverinmeint being on its part (leterlnine(1 to not introdiuce restrictive regulations to the occup~ied Iplaces, takes willingly the pledge that 110 taxation, 110 duties, will be int~ro(Iuced in these occul ied places- whic-h v'ill be, heavier than those jivedl by the Spianish t(will or bot treaties mr (omlrentio).s betweeni S~)min anl other poirers'. The Spanish (jovernuient wvill not put in force excelitional legislation towvard the trade or the subjects of (i'reat Britain, (irermany, or any other powver. 111 case Spain should actually occup)Y other places in the archipelago of Siilu in maintaining administration anl( staff necessary to the, wants of t~radie, the Governiments of G-reat Britain and Germanyv will not. raise objections to the appllication of the same regulations stipulated for thme places actually occupiedl. The artificle further' provides tilat notice of die occupa-tion of additional poiiits, anid the eniforcenienit of tariff duties anid regulations therein, should he given to the Gioverniments of Grreat Britain a-nd Grermanv, amid also published ini the new spapers of Madrid amd Mai h-la for- the jimformation of the public anCd trade. AfVter reading this protocol it is difficult to ag-reel with the statement mafde }y the G'Iermnhl anibassador- that both agrecinctts clearly shn w that not~withstammdlimmg her treaty with the Sultan of Sulu 'Spain (lid miot acquire sovereigynty over' the archipelago, or iii any event that such s-overeignity was iiot recogmiized and initernationallv establisl ed. (lDoc. 7, pp. It is also difficult to consider tile stipulations of said declaration 4 as ceiating or recognizing limitations on the, sovereignty of Spaiif in the Sulu archipelago of other or different character than arise from ordinary treaties regarding coumuerce. Respectinlg such treaties,, the attentioni of the Secretary is invited to the f ollowing. Hall on International Law says (4 ed., sec. 27. p. 98): Thus treaties of alliance, of guaranty, or of (ootoerce are not binoling tipo~in a niew state formed by separatioll. The same, rule is applied in territory ceded to another state as where the territory separated beconies an independent state. (Id. p. 104.) Ilalleck on International Law saxys (3d ed., vol. 1, chap. 8, sec. 35): But the obligations of t~reaties, even where some of their stipulations are, in their term~s, Jperpetual, expire in case either of the comitractimig parties loses its existence as an independent state, or in case its internal constitution is so (hanged as t~o render the treaty inapplicable to the new condition of things. This doctrine originates in the fact that permission to foreign nations to trade with its subjects is an act of grac-e on the part of the sovereignty. 328 In the controversy between the United States and Great Britain with reference to protectorate exercised by the latter power over the Mosquito shore. Lord Clareindon declared that 'AMexico was not considered as inheriting the obligations or rights of Spain." (De Martens. Nouv. Rec. (Gen.. vol. 2, p. 21(0-.) In rctgalrd to lMexico, 1Hall on Internationlal Law says (4th ed., p. 101): The very fact that Mexico succeeded to all the territorial rights of Spain, and consequently to full sovereignty within the territory of tlie Republic, shows that it coul( not be burdened 1y limitations on sovereignty t-o whliich Spain had( chosen to c ncsellt. It possessed all the rights appertaining to an indlejenlenit state, disencnumbered fronm personal contracts entered iinto )y the State fronm whllich it had severed itself. Froml the th uthorities above quoted, it seells that tlie rule is, that where the sovereigntty continues, a chang'e of persons or instruments adniinistelring the sovereigntyv does not chllage the agreement or obligation to extend the grace l1ponI tlie ldesignattd conditions. But where there is a complete clhange not only of officials but of sovereignty, of necessity the atgreement ends, for (each sovereignty lmust cxer(.cise. its grace in accordaince with its own idetas, institutions, and customs. I1 his opinion as to tlie clalim of the Mtanila Railway Company for the 1) lvmlent of stubventiolns by tlhe United States, under concessions grianted by Spain, delivered to the Secretary of War, July 29G, 19)00,( the Attotrnev-(General leld that the personal obligations of Spain incurred in the Philippines did not pass with tlhe sovereignty, although, where thle obligatioln was incLrred( for the continuing use and benefit of t province, a general equitable obligation rested utponi sucli prl) vince to provi(de a fair compensation for' such conltinued benefit. In supl)ort of the proposition that the personal obligations of Spain did mnot lpass with the sovereignty, the Attorney-G(eneral says (pp.;. 7): spain is regarded by the law of nations as having a personality of her ow- l distinct from tlat of tlie power which has succeedled hcr in c(o ntrl (of thle ceded territory, and I am oot aware (f any authority for sayiig that sucl personal obligations, eitlier on the part of tlhe (rovernI ent of Spain or the otlier contracting parties, become 11in(ling as c('ontractual oblligrationis p a governiment which IladLle no sucht pronises, or upon tle indlividual toward a government to which lic e made no such 1,ro mises. HIall says (International Law, sec. 27): "With rights which have been acquire(d and obligations which have 1eent contractel 1by thle ()1 state as l)ersonal riglits an(d oligations tlhe new state las nothing to (do. * * * Tlie new state, on tlhe (ther hand, is an entirely freslh being. It neither is, nor (does it represent, tlhe persoll with whom other states have contractedl. They may hlave no reason for giving it tlhe advantages whtich have been acc(tor(led to tlhe person withl whom the contract was made, anti it would be unjust to sa(ddle it with liabilities which it would not have accepted on its own account." Discussing whether such obligations pass with the sovereignty by operation of international law, tle Attorne-(:General says (pp. s, 9): Nor should we, in inquiring whether the nations have consented to a rule of law to the effect that contracts mmade by thle old sovereignty for local and impmqerial }objects shall be obligatory as such upon the new sovereignty, forget the extraordinary effects 329 which must flow from such a law. Wlat is there tlat lmay not be contractedl for? What imlaginalble stitil o lations may not bte made? To agree ill a treaty to be lb,(u iin lby actual known contracts and to assent to a law about contracts in general are tw\- different tilings. Could nations commlit themnselves to anything mlore ellllrrassingl anl unsafe than a legal obligation to carry out specifically any promlises whats, ever that mav be Iladle Iy) othiers in any contracts for in)perial alndl l(ocal objects? It seeils to me not, and that \whoever asserts that nations hlave )Iy comnillon consent estalslishled such a vlaw must furnish abundant an(l in(lisputalle authority, wliereas, as I all says (sec. 21 7), this sulject "is one Iupon whlichl writers n1 international law are generally unsatisfactorv." In (liscussinog the kind and charact.er of l0obligations whichi (do pass with so(vereignty, the Attorney-General says (p. I): Servitudes or easements, cmpllletely granted or estalblislled upon1 tlle ceded territory for tlle beliefit of a foreign nation, have bleen supposedl to dliminisl bv so ll muchl thle title of thle owner of tlhe provine, so, thlat wllen le cedles it. lie cedles it sullject to the servitudes. ()On the otler liand, it imay btle that tle (Iwner of tlhe province may acquire from a foreign power a servitudle over foreign territory for thes benefit of tlie province, in such a way tlhat it would becmlc appendent or appurtenant to tle' prvince and go with it into wllosesoever hands tlie province mlight be transferre(l. Tliis seelms to be tlie mleaning of Hall (International Law, 4th e(l., p. 98) in speaking of tlie mavigation( and regllatioln of a river. In s1uch( a case tile }obligation runls w-itli tlle land, and ima b)e regar(led as otiler thanl a mere personal obligation. This suggests the inqutir: I)id the, stil)ulations regarding' tradle and fishimg' in the Sulit A rchiipelago( create a perpletual easemeI t iin favor of the ships and sttubjects of (Great Britain, (ermiany, a1d(l the other powers which was a servit.ude 11pon the Sult Islands, e(reatingt an ol ligation which passed wi'th the sovereignty thereof! With regard to such inqltuir tlhe attention of the Secretary is directed to the "fishery displ)ute" letw('('n the U'nited(l States and G(reat Britain. The definitive treaty of peace )between Great 1Britain and( the, Inited States (17S3) contained the follovwing (art. 8): It is agreeil tliat tlie peoqple of tile IVitedl States sihall conltinue to enjoy unmolested the riglit to take fishl of every kini(l on tlie ( ranil Bank and on all the other 1anks of Newfoundland(; also in tile (ulf of St. Lawrence andl at all o()tler places in tile sea wh-ere the inllhalitants of blotl countries used at aiiv time lheretofore to fishl; andi also tlCat tile inhlabitants of the IUnitedl States sliall hlave liliertv to take fish of every kind oni such part iof the coast of Nexfounl(land as IBritishl fishlermen sliall use (but not to dry or (cure tlie same on thlat island), and also Ol tlie coasts, sand creeks of all other of I lis Britannic IMajesty's dlominions in Am\erca; and tllat tle American fishlernien slhall have liberty to dry and cure fish in any i f thle unsettle(l bays, ]:ariiris, and( (reeks of Nova Scotia, 3Magdalen Islandis, and Lablrailor, so long as the salle remlain unsettled, but so soon as the samte or either of tllhem sliall l:e settled it sliall inot be lawful for tle saidl fishermien to dry ior (ure fish at such settlements witlioutt a previous agreemenit. for that purpose with tlie inhabitants, proprietors, or )possessors of tlhe groundl. (Treaties and Conventions of tlhe United States, p. 377.) At the conclusion of the war of 1812 a dispute arose as to said article. Great Britain contended that the provisions of said article constituted a e(/uyt(tti(l, and ileing such were abrogated l)y the war. The United States contended that the provisions of said article constituted a f/rant 330 (easement or servitude), the enjoyment of which was merely suspended,b the war. The United States further contended that said grant was a recognition and confirmation of a right possessed by its inhabitants prior to the treaty. The right to fish in said localities had been enjoyed(l in comninon by all the inhabitants of British possessions in North Anmerica ars a rioht attached to the territory, which right continelld attached to the territory after the acquisition of independence by that portion of the territory which became the United States. The Unlited States asserted the righlt to a commlon enjoyment by two states, lafter separation, of property, irrespectively of its location, which had previously }een enjoyed in commlon by the subjects of the original state: anld denied that the separation of a new state from an old one( involved the loss, )by the inhabitants of the new state, of comllmon rights of property lcated in the territory remaining under the old sovereignty. (Great Britain insistedThat the claim of an indep)endent state to occupy and use at its discretion any part of the territory of another without compensation or corresponding indulgence can not rest on any other foundation than conventional sti)ulation. (British and Foreign State Pap)ers, vol. 7, pp. 79-97.) At the end of a long-continued controversy, the United States abandoned its position, and by the treaty of 1818 accepted said rights of fishing ats being acquired )by contract (art. 1). (Treaties and Conventions of the United States, p. 415.) ATr. I)na, the agent for the United States, before the Halifax Fishery Commission in 1878, interpreted said treaty (1818) as follows: The meaning of the treaty is, that having claimed the right of fishing as a right inherent in us, we no longer claimed it as a right which can not le taken away from us lbut at thle point of the bayonet. (Parl. Papers, North America, No. 1, 1878, p. 18:3.) The position taken by the United States in this controversy is referred to in Hall's International Law (p. 100) as "the indefensible American pretension.' Continuing the investigation, let us assume that the obligations resting upon Spain created or recognized by the protocol of March 7, 1885, passed to the United States by virtue of acquiring sovereignty in the Philippines. It must then be considered that an armed insurrection against the sovereignty of the United States exists in territory adjacent to the Sulu Islands. This insurrection involves not alone the sovereignty of the United States, but also the peace of the world and the safety and welfare of the foreign residents and interests of the entire archipelago. To suppress this insurrection the United States is conducting military operations of such extent and character as to constitute war. While so engaged is it possible that its military operations are so ham 331 pered by prior trade interests that it cani not adeqluately deal with the miltar necessities which may arise Such is, not the. customary usage, of war and nations. The trade treaties, of the, United States', then existing, did not make it unlawful for the Federal Government to b)lock-ade the ports of the rebelliouts Stlates, durino) our civil war. Nor did the trade treaties of either Germany or. France, nor 1)0th together, rend~er it unlawfutl for-the minlit~arv forces of Germiany to conlplete and mai ntai i the military enxi ronment of P'aris,- during the Franco-Pruss,-ian war. Trade treaties relate to the conditions, of peace and, likce tihe laws of Peacee, are suspended in the presence of watr. Iin concluding his umote to the Secretary of State the Geruuuauu11 Amlbassador says: I venture, inoreover to point ouit that the-_ position of tile American governmient of the Sulm Archipelago is in manifest contradiction of the declarations- made in writ.in(, bv the Americ an conminsioners at thie peace conference in P~aris (heing the 1)olicv of the i ntcd Stat(es to maintalin in thle hI.flip)pinles an open door to thle wvorldi's connnerce), 1)rite(I at pages 210 andI 218 of the American ("ongressional (locillllelt, as. well as time Iprlncil~e of the "openi door p 1roclajiiled by the ( tovernmenit of tile United. Sta-tes concern-min easterni Asia. Trhe declarations of the Amnericant com-uunissioners referred to are -as followvs: And. it being tile policy of time Unlitedl States to miaintain in the Plhilippines, anl opei (loor to tile worldl's commlerce, tlie Anlerican. comillissioners are 1)relpared to ils-ert in the treaty now in colntellplati in a stipulation to the, effect tlhat for a term of years Spanish ships and ulerchalianie shall. lie admitted illto the port~s of the Philippine Islands 0il tile saime terils as Almericanl shij)is andiminerchaindise. (55th Comng, Sen. Doe. N o. 6' 2, part 2, p). 210, 21 1.) Tile (leclaration that the policy of time I nited States in time Phiilippines will be tilat of an open door to tile world's commlnerce necessarily impll~ies tilat tile offer to lilace Spanish vessels andI llercllandlise onl the same footinig as American is Ilot illtellded to be exclusive. But the offer to give 'Spatin that privilege for a termn of years 1s inteilded to secure it to her for a certain period by slpecial treaty stip1)liationl, wilhatever Inigit be at auxv tine the (general. policy of tile United States. (1d., p). 218. For the purposes of this investig~ation it is, probablyv, only necessary to call tattention to the fact that the foregoing declarations of the American commissioners at the Paris conference relate to the, permanent established conditions of peace, and were not made with reference to military necessities created bv an insurrection not then existing. The attention of the Secretarv is directed to the probability that the German ambassador, the German consul at Singapore, and German shippers labor under the misapprehension that the restrictions on trade with the Sulu Islands imposed by the military government of the, Philippines constitute the permanent regulations and established policy of the United States in regard thereto and are intended to continlue. after the insurrection is suppressed. If I understand thle matter 332 rightly, these restrictions are imllposed by the military government because, in the opinion of the commann der of the military forces engaged in suppressing the insurrection, there is La Ililitay necessity therefor. When the insurrection is over and peace established, the question will be taken tup anew, either by Congress or such agencies as Congress may authorize, or by the mlilitary government if such goverlnment is continued in chargoe of civil affaii's. While the mlilitary governmelnt is colntinued it is recognized ias lauthorized to regulate lnd control said matters; lbut its orders ill rega'rd thereto a're temporary and cease when the military governmell t ceases, unless Colglress slall contilnue them in force. P'restun1iabll ti llilitalr government in the Philippines will niot be conltilue(d lbeyonld tile period of nlecessity therefor. The sovereiglnty of the t'nited States being established, recogllized, and stlub)litted to throttouhout tlie archipelago, the naltion will cease to exercise its war pow'erst thereover and tle peace powxers w\ill be exercised whenever the condlloitionso of peace prevail. T'le norlital conditiotl of this lnatioln is that of peace. Measures intended for anly other condition lmlust be considered ablnormllal or temponrary exl)ediellts adopted to Ileet existing emergencies. Ul1(e1r the conditiols of peace, foreigni trade with territory subject to tlhe sovereignty of tile [nitted States is to be authorize d and regulated by Congoress. Anid until Congress shlall determine hlow such trade with tile Philippiles s.:lall } b co((Icllted, the regulation thereof canl not >e d(escribed as " Iernllanelnt n1(or the policy of the United Stattes "declared. 'The llilitallr goveri\c' ent is at liberty to adopt for itself a c((ourlse of action il harmionly withi the stipulations of said i)rotocols. But should it (to so, its tactionl wou\\0(l t be blinding ulpol) the b'ideral Govertnenlt ()f the Illite(l State-s whentl tlhat (Goverellll t s1hall ((eal with the archipelagoo iitUlde con(itioms of p)elce. If the stipulations of said )protocols are admlitted( to be "liiLitatioins on the fee" andl therefore binding tul)po tlhe s<overeignty of the United States, they are dependent tl)pol (Coll)grssiolnal.actioii for effectiveness. They l no 1iore self-operatiing thanl are similar provisioins in treaties eltered into by the lUited States as auil originall party. Trl e "iLouisillana purchla-" treaty stipulated tliht for twelve y-eai:s Freincl and Sptanish ships and(l nerchand(ise should elter the l)orts of the cededlt territory oil tihe sanetl terms as Americ'an ships and 11erchandise. The "Filorida" treaty stipulated a similar privilege for Spanish ships atltd merchand(lise in the ports of Florida. These stil)ulations were renldered effective 1}y legislation. (2 U. S. Stats.. sec. S, p. 253; 3 l. S. Stats., sec. 2, p. < 39.) Attention is called to this phase of the matter, )ecause Congress has always jeailously guarded this right. (See Annals, first sess. 4th Cong., pp. 759, 772, 40(; Anntal. first sess. Sth Cong., debate on 33 3 Louisiania purchase: Annals, first sess. 14th Con(-., 36, deba te oii comfinlereni.l convelition wvith G'reat. Britatin. 18Lt5; 1. 2. 8, 4, land 5 Cong. GlobhAe, second sess. 4 )th Cono. (lebate onl purichase of Alaska.) If the co(rrec,(t theory is that th~e iiilitarv yo'overnmieint of the Philippi ties (deriyes atrtvto regrulate, restrict, or p)rohibit. trade with. the terr-itory sub ject to its juriisdiction fromt the lawvs land tusages of War, and11( said laws and usages permit, the exercise( of such authority unrestra-ined iy prior treaty stipla tions. it would seem best to just-ify the acion conipilained of upon that ground alone, and to deterumine the( leno-'th of tinie said ports shall remain closed or tunder whliat. conditions they, sh'all. be opened l)y the same authority. This con rse seemis calculated to avoid comlplictations in our fore"igrn relations. andl eniablAes thle State iDepartment to state to foreignl relpresentatives that the closingo is the result of an order of the military government intended to promote militarv olperations. and when said military g'overnment is displ~aced, the question as to whether or not the previous treaties in regiard to trade are binding- upon the United States will be taken uip by that I)epartment in conjunction wvith Congress and the Executive. If these views are correct, it becomies necessary to respectfutlly direct the.attention of the Secretary to t le languiage used by M~ajor-GTenerlal Otis,- in his communication to the IUnited States con11sul-greneral at Sinugaipore. wherein hie. apparently fails, to preserve the distinction between the military government of the P~hilippines (for which hie was authorized to speak) and the Federal Grovernment of the United States (for which hie was not authorized to speak). Said languagre is as follows: Unitcd States maintain that p)rotocols ~1877, 1858, granting free trade in Sulut Archipelago expire(1 with transfer of sovereignty 1y )VSpainl. Andl again Major-(General Ot-is writes: Of course the former trade protocols between S~,pain, (ircat Britain,,and Gicrmany fall wvith the transfer of sovereignty under the late Paris treaty. The language, used by Mlajor-G'eneral Otis w\as communicated to the Gernian consual by Consul-Greneral MAoselev. (See copy of correspondence. submiitted by State Dept., Doe. No. 1, (case 8.50.) Consul-General Moselev also sent to the English colonial secretary at Singapore a copy of the cabl.egram from Major-General Otis in which this language appears. lie f orwarded copies of his correspondence with. the English colonial secretary to the State 1)epartment, and the Secretarv of State itransmitted. said (copies to the Secretary of War. (See files in case No. 47-4, Doe. No. 32-33.) The Secretary of State iii transmitting the correspondence between Consul-General Moseley and the German consul at Singapore states the purpose of the ref erence as being " for such suggestions, if any, as you im-ay deem proper, for communication to the Consuil-General.." ***(See Doc. No. 1, case 850.) 334 The Secretary of State in transmitting copy of correspondence between Consul-General Moseley and the English colonial secretary of the Straits Settlements states the purpose of the reference as being "for your information and files." At the time these references were made to this Department the particular instances to which the correspondence related were Ceach closed. That is to say, the foreign representatives had asked a quelstion of fact, to wit: Were the ports of the Suliu Islands open. and answer was made that they were not. To this answer the (German consul made no reply and the English colonial secretary stated that he had referred the matter to his home Government. Naturally the War Department viewed the mlatter from the standpoint of the lmilitary government, and considered the question of fact as the important feature. Since the correspondence correctly set forth the f.t(t that said ports were closed, there seemed to be nothing further to say. But the State I)epartment subsequently requested answers to said letters of reference, and thereupon it seemed likely that the State Department considered the alleged reason for justifying the fact as more imrportant than the fact itself. Probably this appears true fromll the standpoint of that Department. It further appears possible to the writer that the State Department may take exception to the langulage used by Major-General Otis as being an attempt on his part to exercise the functions of the State Department. It is quite difficult to preserve at all times and in all matters the true distinction between the military government of the Philippines and the Federal Government of the United States. It is also difficult for the head of the military government to preserve in speech and action the distinction between his position as commander of the United States military forces in the Philippines and that of chief executive of the military government of civil affairs in the Philippines. Burdened as Major-General Otis was by the great multitude of onerous duties resulting from the complicated situation, it is not surprising that in wording or signing a cablegram he did not observe the accuracy of expression ordinarily found in state documents. Major-General Otis during his administration in the Philippines usually preserved the distinction with accuracy. It is more than probable that as his communication was addressed to an American consul-general he relaxed his observance of technicalities, presuming his correspondent, being aware of the distinction, would preserve it. The attention of the Secretary is directed to the fact that while it was probably right and proper for the United States consul-general at Singapore to inquire of the military governor of the Philippines if the ports of the Sulu Islands were open to foreign commerce, and for the military governor to state the fact, it does not follow that the consul-general is authorized to look to the military governor for 335 information and instruction regarding the fixed policy of the United States as to its treaty obligations. If such information is volunteered, it would be well for the consul-general to consider it confidential or refer it to the Secretary of State, before comnllmunicating' it to the representatives of foreign nations as an authoritative utterance of the United States Federal Government. I do not wish to be understood as reporting that the mlilitary governor of territory subject to lnilitary occupation 1may not ill a1ny case pass upon or interpret stipulations of a treaty. Many cases arise where he may do so. For instance, if an individual domliciled within or coming into the territory asserts a right to be exercised therein under a treaty, the military governor may determine if the exercise of such right is to be permitted and if the individual possesses it. But the question so presented is domestic and not foreign, and the action of the governor is quasi judicial and not political. In such illnsttlces he speaks for the military government of the Philippines an(l not the Federal Government of the United States. The views expressed in the foregoing report were approve- d by the Secretary of War. In response to the letter from the State Department, transmlitting the note fronl the imperial ambassador of (Germlany at this capital, the Secretary of War advised the State Department as follows: OCTOBER 1., 1900. SIR: I have the hlonor to acknowledge the receipt of a co-mlnunication froll the State Department, dated August 15, 1900, transmitting a co!p of a note addressed to the Secretary of State by the imperial German ambassador at tills capital, wherein complaint is mlade against the orders of the military government of the Philippine Archipelago, whereby commercial intercourse with the inhabitants of the Sulu Islands was at one time prohibited and subsequently restricted to the ports in the possession of the military forces of the United States, in which ports it is subject to certain regulations. I note your statellent that you "shall be glad to transmit to the embilassy your reply to its expressed hope that the military orders of which complaint is Illade will be rescinded." Replying to your colmunication, I have the honor to state as follows: The Sulu Islands are now subject to military occupation. The right of tlle commander of the occupying force to regulate or prohibit trade with territory so occupied is one of the recognized and well-received laws and usages of war and nations. (9 How. (U. S.), 615; Lieber's Instructions to American Armies in the Field, sec. 5, clause 1; Bluntschli, I, sec. 8; Manning, p. 167; Birkhimer, p. 204.) In addition to the maintenance of military occupation of the Sulu Islands, the military forces of the United States are engaged in suppressing an insurrection in a portion of the Philippine Archipelago accessible from the Sulu Islands. The military authorities conducting the military operations against said insurrection were at one time of the opinion that a military necessity existed for prohibiting commercial intercourse between the Sulu Islands and the outside world. Thereupon Admiral 336 TDewey, as coinmander of the military, forces of the U~nited States in. the Philippines, in. June, 1899, issuedl the following order: ''All trade with the Philippines is prohibitedl, except withi the ports of -Manila, Iloilo, (ebill, and Bakalota. Ships are hereby warnedI to gi nowhere else in the Philippines.'' S'ubsequently this order was miodifiedl ly General Orders, -No. 73, series of 1899, (datedl D)ecemiber 26, 1899; Gen~eral Orders, NoI0 eiso 90 lti ac 0 1900, aiii General Orders, No. 34, series o)f 1900, dated 'March 13,_ 1 900. Cop)i e's o f sail o.rders are herewith inclosed. The military authorities in. commndiai of the Uiiited States military forces in. the Philippin~es. are iif opinion that the restrictioins andl regulations, upon traile with the Sulin Islanids, now enfiirced pursuant to said orders, are essential to mieet the military mieces-sitv occasioned by the insurrection. These restrictions and. regulations, are em-ergency ime-aslires, anid shoulil he so considlereil. They are not intenledl as aii evidence or declaration (if the lpermnanent policyN or p~ractice o)f the United States when. t~he ciindition iif peace shall prevail in. the~' Phliilppinles. Very res-pectfully, [nE1,11 11oO, 8Sicreftori of Jiar. The SECRI,,r~kRv OF STATEr. Iii response to the letter fromt the State iDepartment transmitting the correspondence b~etween the German consul and the U nited States consul at Singapore, the Secretary of War advised the State Department tas follows: OcToBE'R 1,5, 1900. SIR: I have the hionor to repeat the acknowledgment i)f the receip~t of your letter of Apiril 17, 1900, and to answer the saine as follows: Your letter inclosed foir the conisideration of the Secretary of War a copy of the correspondence between the United States consul-general at Singapore aiid the German (consul at Singapore in regardl to traole with the inhabitants oif the Sulu Archipelago. The letter of the (.,crmnan. consul is as follows: "'I heave the honor on. iehalf oif sonie Grerman mnerchants who are (lesirous of trading in the Sulu Islan~ds tol request you kindly to inform me whether the right guaranteed to German (and other) mierchants hiy Article IN' of the. treaty concludedl between the Govermiments of Spain, Great Britain, amid (Germnanv M1arch. 7, 1885, to trade in those islands free and unmnolested is recognizedl by the Government of the Uniteil States, or if any anid what restrictions are placed on the carrying on of that tradle.' It is ti) be noted that the German co~nsul soughit information as to whether or not the "(7oreruiment of the Un~Iited, Y~ates'' recognizedl certain. rights of trade guaranteed byv treaty concluded bietween. the Grovernments oif Spain, Great Britain, and GerMany Mlarch 7,1885. The answer to this request involves the determination of certain questions as to the existing relations betweeni the sovereignty of the Uniteid States and the, respecfive sovereignties of Germnany, Great Britain, and the other powers. Such questions are to he dealt with by the Federal Government of the United States, acting through that branch of the Federal Government to which our foreigin relations are conmmitted. If this view is correct, it would seem t~o follow that upon such request being?. received by the American. consul, the proper course for him to pursue would be to refer it to the State Department for instruction and adv-ice. I note that in his letter to the United States consul-general the German consul 33,7 -tares that hie makes the inquiry ''on behalf of some German merchants who are (desirotis of tradling in the Stilti Islantis,'' anti that lie speaks of the rilght under the treaty as lbeiflg ''guaranteed to German (and other) merchants.'' It niav be that the llur)ose of sail letter extendled no further than to secuire inforination as to the ftci of whether or not the ports of the Suilu Islandls wvere opena to tradle from the ouitside wvorl(l. If this, were the full e-,xtent. of the inquiry, it was proi)ablvl proper and lpermiissib~le to refer suich request for information to the military government of the 1Philipphies. This was the cournse adlopted and p~ursuled by the UnitedI States cousul-general wvho receivedl the, commuitnicationl. Upon1 recleiving the response of the, military government, the U.nited States consuil-general wrote to the G'erman consul as follows: ''I have the honor t~o commnunicate for your information- the following extract of a telegram of date 14th November, 1 899, and~ of letter of 10th December, 1 899, receivedl fromt his excellency (Gen. Kl S. (tis, military governor of the Philippinie Islands, giving exlpression of his opinion on the subject: [Telegrain of 1-1th November, 1899.] "United States maintain that ptrotocols 1877, 18,85, granting free trade in Sulu Archipelago, expiredl with transfer of sovereignity by Spaini.'' ELetter dated Mlanila, 10th D~ecemher, 1899.] 'Of course the former trade protocols between Spain, Great Britain, and Ge~riiiamy fall wvith the transfer of sovereign-ty undler ture late Paris treatv.'' ''1 would add that foreign ves~sels are not p~ermiittedl t~o clgage in the coatsting tradle and( that the customs regulatiomts in force ini -Manifla apply to all other opemn ports of the Philippine Islands.'' The military goverumelt. of the Phlilippine Archipelagro, liaintainedl therein by thle Uniitedl States, is entgage~l in stippregsitng al hinsurrectio~n in a portion of said Archipelago accessible fromu tile utiti Islanlds. The midlitarv authorities condtluct~ing the military operations againist the inisurrection were at one. time (.f the opinion that a military llecessitv existedl for prohibiting comimiercial intercourse lbetweemn the Sulul Islanids and( the ouitside worldl. Thlereuponl Admiral Dewvey, as cotlmmandler of tile lllilitarv forces of the United S~tates in the Philippines, ill June, 1899, issitei tile following, order: ''All trade w~ithi the Philippines is prohilbited, except with tile ports of 'Manila, Iloilo, Cebt', and Bakalota. Ships are hereby warnedl to go nowhere eFlse in tile Philippines." Subsequently this order xvas modified by General Orders, No. 73, series of -1899, d1atedl December 26, 1899; General Orders, No. 30, series of 1900, dated MAarch 10, 1900, anld General Orders, No. 34, s;eries of 11900, date(1 M\arch 13, 1900. Copies of said orders are hlerewith inclosed. The tnilitary ailtlorities 111 commlamnd of tile United States military forces ill tile Philippines are of opinioll that the restrictions and regulations uponl trade with the Suilu Islatlds mnow ettforced lplrsuanlt to saidl ordlers are esselltitil to jileet tile military ttecess ity occasiomled lby tile insurrection. Tllese restrictions and regulations are emergency measures, atl( should b~e s0 (,onstdered. They are itot intemlded as an evidence or (declaratioml of the lpermallamett policy or practice of tile Itlited States when the condition of peace shall prevail itt the Philippines. Tile Sium Islands are nowv sub~ject to military occup~ation. The right of tile coalmallder of the occupying force to regulate or prohibit trade witll territory so occupied 15 one of the recognized and wvell-received laws andl usages of war aild nations. (9 How. (IU. 5.), 615; Lieber's Intstructiomns to) Amlericamn Armnies in the Field, sec. 5, clause 1; Bluntschli, I, sec. 8; 'Matningl, p. 167; Birkhinimer, p. 2-04.) 1394-03 ~22 338 In regard thereto, Birkhimer on Military Government says (p. 204) "One of the most important incidents of military government is the regulation of trale with the subjugated district. The occulpying State has an un(uestioned right to regulate commercial intercourse with conquered territory. It may be absolutely prohibited, or permitted to be unrestricted, or such limitations may be imposed thereon as either policy or a proper attention to military measures may justify. While the victor maintains exclusive possession of the territory his title is valid. Therefore, the citizens of no other nation have a right to enter it without the permission of the dominant power. Much less can they claim all unrestricted right to trade there." This authority of the commander of the occupying force is not to be exercised in accordance with the existing treaty obligations of his Government nor in defiance thereof; it is to be exercised without reference thereto, and with reference solely to the purposes of the military undertakings in which he engaged. The full purpose and extent of the existing restrictions and regulations of outsile trade with the Sulu Islands are to provide for a military necessity, the existence of which affords them justification. Such rights of trade in said islands as are dependent upon trade treaties relate to the conditions of lpeace, and are properly to be held in abeyance until those conditions prevail in the Philippines. Such, at least, is the view entertained by me. If you are unable to agree with the views herein expressed I should be greatly obliged to you if you will favor me with the views entertained by you regarding this subject, as it is important that unnecessary complications be avoided. The military governor of the Philippine Islands does not of course undertake to state the permanent tariff policy of the United States in those islands, or the position of this Government as to forler treaties between Spain and other powers. His authority is limited to the temporary treatment of the subject during military occupation and his expressions should be regarded as so limited. Yours, very respectfully, ELIHU ROOT, Secretaicy of 1J. T' The SECRETARY OF STATE. IN RE CLAIMS MADE AGAINST THE UNITED STATES BY REASON OF THE MILITARY OPERATIONS, ENCAMPMENT OF TROOPS, CONDUCT OF SOLDIERS, ETC., IN PORTO RICO, CUBA, HAWAII, AND THE PHILIPPINES. [Submitted February 6i, 1901. Case No. 2491, Division of Insular Affairs, War Department.] SYNOPSIS. 1. Aliens asserting claims for unliquidated damages against the Federal Government of the United States must present them to the State Department through liplomatic channels. 2. In 1874 Congress adopted the rule that it would not consider the claims of aliens except upon the request of the State Department. 3. A belligerent is not required to pay for damages to persons or property of enemies or neutrals which, being in the track of war, may be injured by military operations. 4. The United States is not liable for injuries resulting fron the unauthorized acts of individual soldiers. 5. A sovereign nation is not ordinarily responsible to alien residents for injuries they receive on its territory from belligerent action, or from insurgents whom the sovereign could not control. 339 6. The United States, while exercising the rights of a belligerent, may occupy real property and seize personal propelty belonging to private individuals and apply it to the use and benefit of the troops, without liability for compensation. 7. Tle right to impress the desired property may be waived and liability for comipensation created lby the action of the military authorities, if such action is taken prior to or at the time the property is devoted to the use of the Army and is sufficient to create a contract, express or implied. If such action is not taken at that timle the military authorities cease to possess such authority and the waiver nmust be made by Congress. 8. The existence of a contract, express or implied, being established, the Secretary of War is authorized to settle and determine claims based thereon or arising therefrom. Sin: I have the honor to acknowledge the receipt of your request for a report on the numerous claims made against the United States, of the character indicated in the title, now on file in the Insular Division, to the end that the final action of the War Department may be taken thereon. In compliance with said request 1 have the honor to report as follows: These claims are mlade against the Federal Government of the United States. They are not made against one of the military governients. Examination leads ime to the conclusion that in a majority of the cases, for want of jurisdiction to pass upon the merits, the action of the War Department ut ut be confined to informing the claimant as to his proper remedy. As to a large portion of these clainms, not only is the WI\'n Departnment without jurisdiction to settle the questions involved, but in addition there are no available funds with which the War Department could pay said claims if the liability of the United States anid the amount thereof were established. The want of jurisdiction arises from tlle fact that said claims are for uniliquidated damages. The determination of unliquidated damages requires the exercise of judicial powers. It is well established that tlie Executive Departiments of the United States Government do nlot possess judicial powers and therefore can not exercise them. There is a recognized exception to this general rule, which will be considered hereinafter. Ordinarily, when a claiml for unliquidated damages is presented to the Wtar Department, the claimant is advised of the waant of jurisdiction to determine his claim and is thereafter permitted to select his remedy, or the claim and accompanying documents are forwarded to Congress for consideration by that body. The claimants in the cases under consideration presumably possess little, if any, knowledge of the distribution of powers among the several branches of our Government, an(l therefore a rejection of their claims without explanation would hardly be consistent with the candor and high regard for private rights which is expected from the Federal Government of tle United States. With but few exceptions, the reference of these claims to Congress 340 by tei T1t )cpar'tent is inadvisable, for the reason tllhat the claimants are either aliens at the present time or were aliens at the inception of their claims. At the (lose of the civil war a large number of ' alien clainls " was presented to Congress. In 1874, upon the recommendation of the Coimmittee on " Alien Clains," Congress assumled the position that the right of petition guaranteed by the Constitution enabled a citizen of the UInited States presentingo a claim atgainst this Government to Congress to demand the consideration of said claim as a rq/igt; that sai(l privilege did not extend to aliens; and thereupon Congress declared that claims of aliens can not properly be examined b}y a committee of Congress, there being a Department of this (Governmlent in which most questions of an international character may be considered-that which has charge of foreign affairs; that Congress can not safely and by p)iecemleal surrender the advantage which may result f rom diplomatic arrangements; that this has been the general policy of the Governmllent, and Congress has not generally entertained the claims of aliens1 and certainly should not unless on the request of the Secretary of State. (See Report No. 498, Committee on War Claims, 1st sess., 43d Cong., May 2, 1S74.) Said report also contains the followilng letter: D)EPAIITMENT OF STATE, I} ashioigtoo, Apr)il 22, 187. SIR: In reply to your telegram stating that claims are presented by FIrencl citizens and other aliens through Congress to the Committee on War Claimns, I have to remark that such presentation is entirely inconsistent withl usage, which requires tlat aliens must address this Government only through the diplonatic rel)resentatives of their own governments. This Department refuses to entertain applications or to receive claims from aliens except through a responsille presentation y1 the regularly accredited representative of their government. I have also been under the impression that Congress refused to receive petitions or claims from aliens. Such I am advised was at one time the rule of the HIouse of Representatives, and such is the rule at present in tlhe Senate, as I am informed. The propriety of the refusal to allow an alien to intrude his claims upon Congress can not be questioned. I have the honor to be, sir, your obedient servant, tHAMILTON(), FisHi. lion. WILLIAM LAWRENCE, House of Relesentati,'es. I amn unable to discover that the practice thus established has been abandoned. It therefore seems advisable for this Department to conform thereto.a The advantage and propriety of pursuing the course marked out by Congress appears most clearly when examination is made of the claims preferred:by citizens of Spain and alien claims for depredations by the insurgents. The claims of aliens now being considered are presented to this "See letter of Secretary of War to Secretary of State, page 409. 341 Departnient I) the individitals theniselves instead of )eing )presellted to the (:Govlerniient of the Unlitedt Statexs y- the so-ereigrnty to whlloni0 tile claimiant owes allegiance. If these claimallts were reqluired to deaIl with the State I)epa(itlllelnt? they would })e of)liged to invoke the assisttance of their sov\ereign in l)Iesenltilng the clainl in order to coIllply with what Secretary Fishll esignates tle "usage which reql(ires that aliens Illust add(lress thlis (Go\Nvenlllent only through the diplollaltic rep)resentatives of their own go\-overnllents. MIy lv tlnderlstlndin g of this Itsage is that it requires the alien clailiant to present his clailmi to his ownl government. If his goverlilent considlers the claim jus4t, it may thlen tlndertake to) secure the pa1yment, 1ndlld for that purpose presents tile clailll witll its 1l)l)roval (ex)press or itlnplied) to the 'United States. The mlere trallnsllission of s'aid clailni by a1 consul or minister as the representative of tile c(latililanlt is n6t sufficient. If these claimants are req(uiried to secure the approval or indorsemients of their clainms by their governments, there is little dottblt that mlany of them will be:advised that sai(I clailml-s are not well founlided all the United States not liable therefor, as sai(i cl'aims are incompatib)le with tile establlished principlel that foreigners domiciled inl belligerent country muilst share with the citizens of that country ill the fortunes of war. Such coulrse was pursued by Great Britain when requested to present clainis agtLainst (e'ermlany of English citizens domiciled in France for datmages sustained dluring the Franco-P1irussian war. tiand also,by the United States wheni property l)elonging to its citizens was destroyed during the l)ollbatr(elllt of Valparaiso )by the Spanish fleet during thle war between Spalin anld Chile. An advNerse determination made by his own government will probably be accepted with better grace by a claimant than if made by the Utnited States. Several (lllainis of this character, included herein, when presented to the military authorities of the t'nited States, were submitted to military boards for investigation. B3tt this is not to be construed as ka recognition of the claims. The p1urpose of such reference was to secure a knowledge of the facts while the evidence was obtainable, for the sublsequent use of this Government. If the War Department shall not attempt to deal with alien claims, the final action of the Department on such claims now pending therein would be to return the papers to the claimant and advise himn of such determination. This is all that is absolutely requdired. But the conditions existing in the territory in which said aliens are domiciled and the claims originate (Porto Rico, Cuba, Hawaii, and Philippines) may induce the Secretary to go further and informn these claimants as to the necessity of procuring the indorsement of their sovereign government and the presentation of their claim thereby. If so, what advice shall be given to those claimants who were Spanish subjects at the time the injuries complained of were inflicted, but subsequently adopted the nationality of the territory in which they are domiciled s 342 Shall they be advised to invoke the assistance of their abandoned sovereign in dealing with the United States? Since the result to be attained is to seeure the friendly offices of the State I)epartment in a matter of which Congress is the final judge, such result could und(loutbtedly be accomplished by having said claimls presented to the State Department by the Government which is now exercisingl sovereignty in the territory the nationality of which ]las been adopted by the claimant. If the papers now on file ill many of these claimls llade ly persons who were once Spanish sulbjects showed that the claimants have adopted the nationality of their domlicile, the Secretary of War could transmit the claims to the State Department, where they would undoubtedly receive attention, but the showing is not made and therefore it appears necessary to return themn to the clailants or call on them for a showing as to their present nationality. II. Upon investigating the merits of these claims it appears, in a maIjority of instances, that the facts involved do not create a liability on the part of the Federal Government of the United States. This raises the question, Shall the claimants be so advised by the War Department? These objections are as follows: Article VII of the treaty of peace with Spain provides as follows: The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government that may have arisen since the begilning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article. Indemnity means a reimbursement of a loss sustained. It is a large word and easily covers the claims of Spanish citizens now under consideration. Apparently it was inserted in the treaty to preclude the possibility of diplomatic complications which would inevitably result if either nation were permitted to present and urge the claims of its citizens against the other arising from the conditions produced by the war. I am of opinion that said waiver by Spain affected the claims for indemnity of all persons who were citizens or subjects of Spain at the time the treaty went into effect as a national compact, and such waiver was not avoided by a subsequent change of nationality. III. A number of these claims are for compensation for damage. By " damage" is meant, as here used, loss or injury resulting from matters to which the claimant did not consent, the purpose of such 343 classification being to d(istinguish themll from c(lailis founded on contract. 'rihe objections to the settlellent lby the War )epartlllent of such (clillls for damagae. are: 1. That said danmages are unliquidated and the War I)Depallrtlllent is without authority to settle anid adjust clainls for unliquidate(l da(lnages. (22 Op. A..., 441-442.) It is lbelieved to have b)een tle uniforni lpractice of tlhe War )epartiiieut to, ablide b)y the \-ell-established legal p)rinciple which l recludes the execltive l)rallcl of the Governiment from allowing (claimsl for damages to l)rol)erty (lestroyedl or injured( in the comIon (lefense or d(ue prosecution of war against lpublic enemies. (Ir. Belknap, Secretary of War, to Mr. Lawrence, Febl. 24, 1874.) 2. A number of these claims are for damnlages occasioned by the military forces of the United States while engaged in actual hostilities and in perforlnance of active military operations in enemy-'s country, purstuant to the orders of cominianding officers and the pu1rposes of the war. A belligerent is not required to pay for dalnages to persons or propertv of enemies or neutrals which, being in the track of war, is injured by military operations. (Vattel, Book III, chap. 15, sec. 232; United States r. Pacific Railroad. 120) UT. S., 233-239; Wharton's Int. Law Dig., vol. 2, sec. 224, p. 582 et seq.) A neutral's residence in an enemy's country exposes his property to enely'-s risk. (Wharton's Dig. Int. Law, vol. 3, chap. 17, sec. 352. p. 341.) IV. Some of these claims are based on the unauthorized action of individual soldiers; acting, not in the performance of orders, but in violation of the military code, the Instructions to the Armies of the United States in the Field, the law and usages of war, and international law. For injuries of this character no legal responsibility would attach to the Government. The 1TUnited States is not responsible for unlawful acts of soldiers or employees, and the Secretary of War is not empowered to allow a claim for personal property stolen or illegally appropriated by a soldier. (J. A. G. Op., p. 260, sec. 16, Id., p. 248; Moore International Arbitrations, p. 2975.) The remedy in such cases is by civil suit against the offender and by prosecution under the criminal laws. V. Certain of these claims are for compensation for injury to persons or for damage or destruction of property by insurgents in the Philippines. The general rule is that a sovereign is not ordinarily responsible to alien residents for injuries they receive on his territory 344 froIll belligerentt action or froml iisu'rgent whoi helie could not control. (Wharton's I)ig. Int. law, vol. 2, chapl. '9, sec. 223, p. 570;.) There seeni to be limliitations to this rule, two of which have b-een advanced(l y ourl (4rovernment, as follows: A governmlent is liable internationally for injury inflicte(l on aliens throlugh its negligence in perlnitting insurgents to destroy the property o(f suchl aliens and l y its subseq(uent il-pliedl ratification of the coo(luct of suchl insurgents, there tbeinii n), re(lress offered in the courts of such governmlent. (MAr. Frelinghuysen, Secretary of State, to AIr. Baker, Al)ril 18, 1884, MASS. Inst. Venez.; also, Mr. Bayardl, Se(ecretary of State, to IMr. Baker, May 12,:1885.) Whether a nation is responsible for spoliations by insurgent authority w\lichl for a ti,,ne obtain possession of pIart of its territory dei)ends upon( the question hlow far su(ch' authorities were, in international law, caplable of b)inding the nation lby tleir acts. (MIr. Seward, Secretary of State, Report Mlarch 30, 1861.) T'he War Department can not be expected to hold that the Governnlel)t of the United States is guilty of "'negligence in permitting insurgents to destroy property" in the Philippines, nor to hold that the insurgent authorities alre, ' in international law, ca(pable of binding the nation )bv their acts." An examination has tbeen lade as to the authority of the Secretary of War to refer these claims to the Court of Clainls, under the provisiolns of the act approved March 3, 1883. (Bowman Act, 2'2 Stat. L., 485.) T'he rule seems well established that the Secretarv of War is at liberty to refer to that court only such claims as he could determline, i. e., such claims as are within the jurisdiction of the War Department. The transfer of a claiin under the Bowman Act does not carry with it an increa-e of power over the nmatter in controversy. If the departmlent be without jurisdiction of the claiml, the court is without power to determine the case upon its mnerits (Illinois r. United States, 20 Ct. Cls., 342.) To enable the court to take cognizance of a claim transmitted to it by the heal of a dep)artinent under the Bowmnan Act, it must appear that such claimI was one which that departlient has authority to settle or adjust. (Pitman et al. v. United States, 20 Ct. Cls., 254; fMcClure and Porter's case, 19 Ct. CIs., 30; Hart's case, 15 Ct. Cls., 414.) An alien mav maintain an action in the United States Court of Claims, under certain conditions set forth in section 1068, Revised Statutes, as follows: Aliens, who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject-mlatter andi character, mnight take jurisdiction. The Secretary may desire to know if the Spanish Government pernitted citizens of the United States to nmaintain suits against said G;overnment in the courts of Spain. 345 The Court of Claills say: Of all tle governments of Europe, it is believed tlat Russia alone does not iold the State anenable in matters of property to tlie law. ~ Of all the countries whose laws have bleen examined ill tlhis court, Spain only resemi)les thle United States in fettering tile judicial Iprocee(lings of ler courts lb! restrictions an(l leavilg thle executions of their (lecrees dlepIendent upon tlhe legislative will. * * * Tlhe records of this court also show that, witilin the present century, an American citizen recovered a judgment agailnst Spain, in a Spanish trilunal, to the very large amollunt of $373,879.88, and that he elected to retain Spain as his debtor wh!en1 tile decree was about to be transferred to and assumled by) tlhe Inite(l States, alnd tiat his chloice was judicious, for though thus transferredl anil assuime1, tlle deblt hlas never been paid. (Meade's case, 2 Ct. Cls., 225.) The " Spanish tribunal which rendered the '"decree" alove 1referred to was at( j(lt or colmission having special powers. The existilng condition of the law in Spain appears to be that the courts may entertainl the suit of La citizen or alien against the (overlnmlenlt and renderL jl(dgment therein, but can not enforce the decree. The relief afforded by the United States Court of Claims extends no further, tan( therefore Spain coniplies with the reciprocity re(quiiremnents of section 1068, Revised Statutes of the United States. VI. About forty of the cases included in tlhe niumb)er ow undergoing investigation present the (luestion of the authority of the Secretary of War to settle and tadjust claims based oi;, ic contracts. These claims arise from at condition of facts substantiallv as follows: Property belonging to the claimant wxas taken and used by the U nited States for the support or other benefit of the Army. At the tille of the taking and use the military authorities contemplated and intended that compensation should be made therefor. In some instances parol agreements were made to that end; but in others, beca.use of absence of the owner, inalility to speak the language, want of time, or other reason, no express agreement was entered into with the owner. The owner now seeks compensation for his property so used, basing his right thereto upon either a parol or implied contract for paymlent of a qyrantttt ii cr/deit. It is undoubtedly true that the United States, while exercising the rights of a belligerent, may temporarily occupy real property and seize personal property belonging to private individuals and apply it to the use and benefit of the troops, without liability for compensation. It is equally true that the United States is not obliged to pursue such course, but is at liberty to refrain therefrom; and if it desires to occupy or use and consume the property of a private individual, even that of an enemy, it may subject itself to the liability at the time of the taking, in which event the compensation partakes of the character of debt; or the United States may decide, after the taking, to waive its 346 exemption, in which event compensation partakes of the character of 75oeenr ty. The right of the Government to impress the desired property may be waived and liability for compensation created by the action of the militari authorities if such action is taken prior to or at the time the p)roperty is devoted to the uses of the Army and is sufficient to create a. contract, express or implied. If such action is not taken at that time, the military authorities cease to possess such authority, and the waiver must be made by Congress. The military authorities accomplish such waiver and create the liabilit by1 entering into a contract with the proprietor. If the contract is in writing and entered into pursuant to the provisions of section 3744, Revised Statutes, the Government is bound to pay the price stipulated in the contract. If the contract is not reduced to writing, the Government is liable for the fair market value. Contracts not in writing may be divided into two general classes, express and implied. It is well established that the Secretary of War may determine the merits of and amount due upon claims made for property actually devoted to the uses of the Army, where the contract was (prlrese(d either in writing or in parole. I am unable to report that it is also established that the Secretary may determine the questions arising where the contract was i,,plied, although the reasoning which establishes the authority in one instance carried to its logical conclusion establishes a like authority in the other. The liability of the Government arises from the fact that the taking and using was accompanied by an intention to pay therefor; and the authority of the Secretary of War to act upon the matter arises from the fact that a contract exists and — Executive officers have jurisdiction of claims for money due on contracts, though the exact amount be not fixed thereby. (20 Court Claims, 119.) The line between liability and nonliability of the Government is plain. As stated by the Court of Claims, it is as follows: There is a distinction to be drawn between property used for Government purposes and property destroyed for the public safety. If the conditions admitted of it being acquired by contract and used for the b)enefit of the Government it may be regarded as acquired under an implied contract; but if the taking, using, or occupying was in the nature of destruction for the general welfare, or incident to the ravages of war, and whether brought about by casualty or by authority, and whether on hostile or national territory, the loss (ill the absence of positive legislation) must be borne by him on whom it falls. (Heflebower v. United States, 21 Court of Claims, 229, 237.) In Clark v. United States (95 U. S., 539) the majority of the court held that the terms of an oral agreement with the Secretary of War were not binding upon the United States in the sense that the specific provisions thereof could be enforced by the contractor; but the court say (p. 542): 347 W\e do not mean to say that where a parole contract Ihas been wholly or partially execut(le and performed on one side tlle party performilg will not l)e elntitled to recover the fair value of his property! or s'ervices. )On tle conltrary, we think that he will he entitled to recover such value as upoll an inplliced coltract for a qlantufn Miller, Field, and HuInt.... tJ.. dissented and were of opinion that the terms of an oral agreement }beciame binding' upon the United States when the agreement was performed. Il voiciing their dissent Mr. Justice Miller said (1p. 546): If there is any branch of the public service where contracts muslt often lbe made speedily, and without time to retluce the contract to writing, it is in that of the Army. Sudiden occasions for supplies, for tlhe occupation of buildings, for the transportation of food and munitions of war are cnlstantly arising, and in many of them it is impossible to (o more than dlemand what is wanted and agree to pay what it is worth. Did Congress intend to say that the platriotic citizen, who said " take of mine what is necessary," is to lose his property for want of a written contract, or be remitted to the delays of an act of Congress'? In Wilon v. United States the Court of Claims sa-: This oral arrangement between tlhe parties w-as not binding upon the defendants as a co)fract. * * * The legal effect of the oral arrangement was, that if the claimants should go on with the work they would become entitled to compensation, upon an implied assumpsit, for the value of so much as they should actually perform. (Wilon r. United States, 23 Court of Claims, 77, 81.) In United States '. Bostwick (94 U. S., 53) the court recognize that the United States may contract by implication. In that case the court say (p. 66): The United States, -when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf. All obligations which would be implied against citizens under the same circumstances will be implied against them. And again (Id.): There are in this contract no stipulations to take the place of or in any manner restrict this implied obligation on the part of the United States growing out of their relation to the petitioner as his lessee. The existence of a contract being conceded or established, has the Secretary of War authority to determine the amount of the, puantamn In Dennis '. United States (20 Ct. Cls, 119) the court held (2 Syllabus): The executive officers have jurisdiction of claims for mloney due on contracts, though the exact amount be not fixed thereby. In the body of the opinion the court say (p. 121): Technically all claims for money due on contracts, where the exact amount payable is not thereby fixed, as in the case of goods purchased or work done without an agreed price, are claims for unliquidated damages. But they arise necessarily and of course from otherwise fulfilled and executed agreements, and their settlement rarely requires anything more than the ordinary processes of accounting, the prices being readily determined by the vouchers and reports of the public officers incurring 348 thle exp~nel,.~s, or lby other mneans within reach of thle accounting o)fficers, who v~ery prolperly take jurisdliction and pass upon such claims.-, (See also( 'McClure r. United States, 19 Ct. Cls., 179-ISO; Satterlee, adnix. ct al r United States, 80 C"t. (is., 51-54; UnitedI States r.Corliss Steam ]Engine Co., (9I. U. S., 321; United States r. BostwNick, 94 17. 5.,.53. Iii opinion oii the~ claim of the Snow andiIce Trlprtj.-ttto ('onipanv, renderedI to the Secret~arv of War, April 12, 1899, the AttornevG'eneral says (22 Op). A. Gr., 44-1-442): The Court o)f Claimis has repeatedlyv held that, tunless, authorized by Co(ngresss. hcads~ o)f IPepartnients have no power t(o a;ljust the pay claims, f r unliquidated laiimiages, even when arising fromt breach of contract. A well-recognized exception is the case,, of claims for wo-(rk and labo)r lone o)r materials, furnished under (contract silent as to price and( time amount therefore unili(quidate(1. The rule; appeals, to ibe that a claiml for ptan tamn uiciruit, btased upon01 a contract which h~as lbeeni performed, is to be distinguished fromi a claim for unliquidated dainages, and the \Var Departmient has lauthority to determnine the amount of the V~woitllui aYiwiit. The question now Ipresented is: MaN- the Secretary of War exercise this authority of determina~tion when the contract is inplpied? An analog-ous qutestion larose tipon the application for paymient of rent for lands used for Canip M'Neade, P~ennsyvlxania, and wvas referred to the Comiptroller of the Treasury, who decided that the claim mnight be settled afnd paid by the 'War Depiartmient. The Comptroller (lecides the rule, to be -Its follows: I. If p)ropert~y was imnpressed, that is, takemi without the consent of the owners, an(1 without agyreenient as to rental, the claini is for unliquidated damages and the War IDepartment is without jurisdiction. (See letter to See. of War, April 13, 15919.) 2. If ''tie property was taken with the knowvledge ani consent of thle owners thereof, under and pursuant to a parol agreement betwiben the Governm-ent. and s-ai(I owners that the Governmnent should use and occup~y said1 property and pay to said owners a fair- and just comipenisation for such use and occupation, but the anmount of compensation was uiot fixed by sai(I agyreenient, andI that -subsequent to such use and occupatioa and heretofore thle amount of compensation has been agreed uipon lbetween the proper officers of the Government and saidl owners, I am of opiniomi that thle samne may be 1)aid. Not upon a statutory contract because t~he lparol agreeinent, not having been reduce(1 to writing and signe(1 by the parties, was by -section 3744, Revised Statutes, void, b)ut the agreement, although void, having 1)een actedI upomi and executed by said owners, they are entitled t~o the reasonable value for the said use and occupation of saidl property, andl if the same has been determined and agreed upon 1)etween the proper officers of the (ioverninent and saidl owners, and1 the amount fixed, it may be paid." (See letter to Sec. of W~ar, April 19, 1899.) It will not escape the, observation of the Secretary that the Coniptroller confines the jurisdiction to parol contracts duly performed. Ile does not expressly decide that the Secretary of War has a like jurisdiction where the contract is iplied. From the reasoning of his decision it appears to the writer that the rule would be the same in both instances. The jurisdiction arises from the fact that a contract exist-writenparol, express, or implied. The Comptroller decides that the stipulations of the parol1 contract are rendered void by the 34I9 provisions of section 3744, Revised Statuttes. }but, hlaving been acted upon. a liability to pay a reasonalle va-lue was created. This liability arises from thee use or ocupatioii which was lawfutl and1 authorized; it is not dependent upon the fact that the conditions of the using were expressed, for the expression, beilng ii par'ole, was void. Otherwise, both liability and jurisdiction are lmade to depend )upon tile one thilng in the transactionll which was illegal:alld void. The opinion of the Comptroller was gi\ven in a case where the contract was in parole. But the gelneal priiciple deducible therefrom is that if the authorities took the property for the use of the Army, intending to pay for it, 1and devoted the property to the use of the Anla, and the ownier at the time or thereafter acquiesced. a claim fori slch palymenllt is founded on contract, and the Secretary of War may settle and pay it. )On the other hand, if the taking or destruction of the property was not done for the use of the Army. but to promote mIilitary operations or the puriposes of the war, and the authorities did not intend to pay therefor. then the claim would be for unliluiidated dalmagei.s. Such, for iistalnce, would be a claim for danmage to crops, fences, or structures by any arlnm on its march even in loyal territory; or for tempora'ry occlupancy of houses and land necessary on a march, p:)reparat to to a battle, during battle or afterwards, for hospitals, officers,:ld stores; or for material to build bre:stworks, fortifications, etc.; or p)roperty destroyed to weaken the enemy or pl'Oiote the olerations of our' troops; or the seizure of enemy's property for the purploses of the watr. It would seem asI though the proper test is: W\\as the property taken for and devoted to the use of the troops with the intention of paying therefor, and does the owner assent thereto, (Waters?. United States, 4 Ct. Cls., 299; Provine r. United States, 5 Ct. Cls., 433; Kimball r. United States, 5 Ct. CIs., 252; Stevens r. United States, 2 Ct. Cis., 95; Avers v. United States, 3 Ct. Cls., 1.) The consent of the owner is undoubtedly essential to the creation of the contract. But it would be unjust to require the owner to establish that he evidenced his consent at the time of or prior to the taking, for he may not have been present or in the vicinity, or lbeing present was in ignorance of his rights or situation. It would seem sufficient if he is now willing to carry out the intentions entertained by the authorities of the United States at the time the property was taken and used. In such cases, the important feature would be to ascertain the character of the taking. Was it impressment or not? This (question tutrns upon the intent of the military authorities, and, in the absence of direct evidence, must be determined by existing conditions and attendant circumlstances. Who is so well able to declare the intent of the military authorities or to adjudge the significance of conditions and circlumstances as the Secretary of WarL 350 As a imeasutre of econoumy, I doubt not that it would be to the advantage of this Government to have such claims settled by the Secretarv of War instead of sending theni to Congress. The experience in settling the claims arising during the civil war;, by Congress, deImonstrates the wisdom of scureinog settlements while a knowledge of facts and valutes is ascertainable." The views expressed in the foregoing report were approved lby the Secretary of War, and 1}y his lilrection the chief of the I)ivision of Insular Affairs transmll itted copy to tile military governor of Cub(.)a. the civil governor of the PIhilippine Islands, the colmmander of the U'nited States mlilit'aryv forces inl the Philippine Islands, the office of the Judge-Advocate-General, U. S. A., and the chief clerk of the WarDe partment. The lquestion discussed in foregoin, Sull)(divisioi VI lbeing referred to the C(omptroller of the Treasury, that official determinedl the matter as follows: TRE.sU-i- DEIARTM1IENTr, (O)FFII' OF C(()nI'rOIILEI ()F IIE TREASUlRY, ITPtshiogton., March 12, 1901. The SE('RETARY OF WAR. Si': I iave received your letter of February 1(, 1901, as follows: "I have thle lionor to request your opinioll on a question arising in a number of claims against thle G(overnlment for compensatioCn for lrivate p)roperty, taken iby order of the mlilitary autliorities anlld devote(l to the use of the troops, whereby proper subsistence, shelter, etc., w\-as affordle(l telll. "At the time the private property was taken thle military authorities intended that conmpensation sshould be na(le, but for lack of tiime, inability to speak a commolin language, absence of tle owner, or otller cause, anl e.tpre'..s contract, either in writing or parol, was not formlulated(. There exists ain implied contract to pay the failr market value of sai(l property, whicl contract mIay be establishled, either by the evidence of the officer who orderedl the taking or by attendant facts, circumstances, andt con(itions. "The question thus raise(l is as follows: I las the Secretary of War authority to settle and order I)aynent of a claiim for Ioney (lue on all ilmp)li)ed contract rwhich has Ibeen performed? "Atmy request the law officer of the Division of Inlsular Affairs of this Departmelnt has prepared a report on this lquestion in connection with the general subject of claims. I transmlit herewith a col)p of sai(l report, an(l call your attention to Subdivision VI, wherein the question submitted is (liscussed. "It will greatly simplify the work of thlis Department in dealing with claims of the character indicated if it is determlinedl that thie Secretary of War may exercise as to implied. contracts all authority such as he exercises-where the contract is in parol. ' Subdivision VI of the report referredl to by yon is as follows: * * * * * * * The question presentemd for my decision is, Ilas the Secretary of War authority to settle and order payment of a claimn for money due on an implied contract which has been 'performled? It has frequently been held that where there has been an express contract, either in writing or parol, for the performance of (certain things, and the consideration has 351 MINING CLAIMS AND APPURTENANT PRIVILEGES IN CUBA, PORTO RICO, AND THE PHILIPPINES. [Submitted -May 22, 1900. Case 'No. 1525, IDivision of Insular Affairs, War 1)epartrncut.j SIR: 1 have thie honor to acknowledge the reference to mie, with a request for a report thiereon, of several letters of inqluirv to the D)epartment reg'arding- the procedure to be followed in secuiring m1inino ' cainis and appurtenant privileges in Porto Rico, Cuba, -and the Philippine Islands. The a.1plicants seek to secure the. rights, usually granmte(1 for mining purposes. These applicanits being without knowledge of how to proceed, and desirous of retalining exclusive, knowledgre of their discoveries and the location of the minerails, do not attenipt to institute proceedings, b~ut 'apply to the D)epartment for instruction. Heretofore reply has been miade that t~he questions involved had not vet been determined 1v the Sec-retary of Wtar. The recent law of Congress approved April 12, 1900 (31, U. S. Stats., 77)0, ~livests the Wair Department of jurisdiction ovei the affairs of civil government in P~orto Rico, andl by appropriate provisions confers the power of regulating the disposal of the public property in the island, of the character uinder' consideration, upon the civil go(vernment created by said law. (-Sec. 13, "Foralker Act.") not beens a-greed upon ill advance ((nd the? irork4 1h(t bee)? fexecitedlan inilpliedl promise will lbe raised to pay the reasonable value of tile serv~ices or supplies, andl the Iproper oflicer m1ay thereafter agree with the other party. as to saidl reasonaille value. I see no reason ill trawing a distinction iletwveen a case where ipart of a contract is expressell andi lart. ilupliell and a (case w\\here all of tile contract. is~ impllic(I, providled an iluJlicat~ionl of a contract c-an and does arise aild in fact exists. If all of tile dcelments necessary to constitute a binding contract actually exist., 0(1i the( i)roIper(t is actoollb ftoken bil the (Y'orerwiiiewtfor tieMe vx({f the iro)y, I. see 110 reason why the amount mnay not ihe liqlui(Iatedl by y\oul alld the ainount thereof paidl in the same ml'aumier as would be (lone where Jpart of the contract was expressed and lpart fimpliedl. Tile question wNhether the mere taking of plrivate property for use of the Arimy, with or withlout tile consenit of tile ownler, froin a citizen of tile Uninted States or, anl alien, ill a Ilostile country, in and with. which the, United States is at war, inl tile presemlee of contemlding military forces, shall lbe collsidleredl as anl act of ctj)prl'(j)ria(tioal for which the United States wvouildl ot be liablie, or as raising anl in-plied conltract forthe purchase of and p)aymlenlt for the prop)erty taken, is one requiring tile most carefill coiil;s~ideration andl ajlplication of tile legal principles governillg such eas-es. NN'hetller all inlphedl contract could arise in sluch cases- is a mnatter imlvolvedl ill mutch doubt, there beimlg many (lecisions of courts~ amit the accounting officers onl tile sullject. ind~icating a strong leaning, to say tile least, against tile validity of 5iuch claimis. Inl view of the importance of this mnatter ailt the uncertainty surroullding it you meay (leemi it wise to transmit such claimis to tile Auditor for tile War Departulent for settlem ent, after von have mnade such examination thereof as you (lesire to make and ascertained the value of the property taken, inlsteadl of having time claims paid by a disbursing officer with a liahility of having said payments disallowed in the -settlement of the officer's accounts. Respectfully, L. P. MITCHELL, Assistant Coiipjtroller. J. D. T. 352 Therefore this rep~ort will 1)e conhined t~o the questions relating to the island of Cuba and the Philippine Archipelago. It appears, that the military government in Cuba has seen fit to continue the granting of mining clainis in that island upon compliance wvith the provisions of the mining law as existing) prior to the American occupation. The ordler of the miilitarv government in reg-ard thereto is as follows: No. 53. II E'ADIQUARTERS D Iv Is;I ox -\OFCBA The military governor of Cuba (directs the publication of the following order: The right to denounce, an(l,,after complliance wvith. the conditions prescribedl lby law, to acqluire title to a mnining claim in the islan(I of Cuba, is a right assured lby the provisions of the mining law as it existedl in Cuba 1)rior to the American occupation and as it has continued to 1)e iii force since. Ini availing them-yselves of this right Cubans, and foreigners alike merely exercise a universal righit concededl to (citizens of all countries. The, fact that, in the exercise of thise righit, exclusive owNNTership of the mining prolpertv results,-, is not sufficient to bring niinin, claims withiii the teriis of the Foraker resolution prohibiting the graiitiiig of special con)rcessions or franchises in the island of Cub~a dluring the (n-otiiiance of American authority over the island. To holdI otherwise would b~e to 1101( that 1y a lprovisioli alplendled to ain approlpriatioli bill, passedl by the Congress of the Uited States, the law of the land for the island of Cuba could 1)e modified to the serious prejudice of many individuals, Cubans and foreigners alike; and there is no reason to b)elieve that it was the intention of Con)rgress to withdraw the rights and privileges previously existinig in Cuba. Suich action would be positively detrimental to the interests of the island iii the highest degree. It is believed, therefore, that it is mnerely a ministerial dlutv onl the part of civil governors of provinces to execuite and~ (leliver dleedl5 to miningn~ claims when the samne have been prop)erly denounced, and all the conditions lprescribedl by the mining laws have lbeen complied wvith by the locators. ADNA. It. CHAFFEE, Briywdier-Generol, Cliif of A/afi -L am not ab!le to learn that an order of like purport has been issued by the military government in the Philippines. Inquiry at the office of Colonel Edwards, the Chief of the Division of Customs and Insular Affairs, was answered that the only information had was the following ord(e r: GENERAL ORD)ERS, OFFICE OF THlE U-NITED STATES MILITAiRY GovERNOR1 Ix THE PHILIPPINE ISLANDS, N,-o. 3 1. )Manil(, P. 1., Marach 10, 1900. The mining bureau (ins-pecci6n general (IC iiiinas), heretofore adlministered as a bureau of direccioii general de adm-inistraci6n civil, is hereby reestablished and placed in charge of First Lieut. C. 11. Burritt, Eleventh Cavalry, UnT~ited States Volunteers, who will receipt to the chief engineer officer of the (lepartment for all recordls, (documnents, and prop~ertv pertaining to sai(1 bulreati. By commandl of Major-General Otis: M1. BARBER, A.,;siste-mt Adjulan-Gewerol. 353 If the Secretary of War ha1S auMthorized or approv~ed the policy where'by grant~s of mningii claims aire made in Cuba and the P~hilippines b~y the existing govermnments therein, the consideration of this report is unnecessary, and the aniswer to the initerrogatories untder considertation is oIbvious. How ev er, as thiese letters of itnquirv hav-e b~een referred to ime, for a report. I lassumne that the (I{uestions." innvolv-el have niot been thnallv deteriniined by the Secretary of WVar, and therefore the investigat-ion is (on tinned. Unde Spnishlaw minral in - atua state lbelongs to the Crown Therefore, so much of said miineral ini the territorv involvedl as the Crown then retained passed to the Unitedl States as a result of the war and the treaty of peace. Attorney-General Griggs, in opinion onl the application of Frederick XV'. Weeks, to construct a whatrf at Ponce, Porto Rico, delivered to the Secretary of War JIulv 2f'. 1899, sayvs: If constructedl 2the pier or wharf will be upon the publfic domain I)f the United States. I understand1 that under ~Spanishi law lands uniler t~ide water t~o hi-h watermark in ports and harbors in the, Spanish West lndlies 1)elonge(l t~o the Crownv. As CrTownv property they were, hy thle treaty of cession, transferred iby Spain to the U nited States of Amierica, and are nowv a p)ort~ionl of the puhlic domain of that nation. I (10 not knowN of ainy right or lpo'v(r which, the Secretary of War or the President has to alienate in perp~etuity auv of the public (1)mnaiu of the 1 nited States, excep~t in accordance with acts of Congress duily pas.se~l wvith reference thereto. There is no fegislation by C'ongress Iladle for or p~roperly applicable to thle public domain inl Porto Rico. T1w powver to (lispose p~ermlanently of the pub~lic landis and punblic property in P~orto Rico rests ini Congress, andl in tlhe albsence of a statute coniferring such po\Ver can not be exercised by the executive (lep~artillelt, of thle Government. I ram ulnalble to see why the disposition of p~ublic pr'oper'ty inl the Philippines, of which the United States Governmllent is the lproprietor, should be gov-erned by at differenit rule than is (applied] to liublic property in Porto Rico. The reason for the, rule announced by the Attorniey-GIeneral (loes not apply with equal force to the coniditionls existino- inl Cuba. As to pulblic property in Porto Rico anid the Philippines, the United States received title as oJ)ro~idor, 'but in Cuba the, Uniited States received title as tiaostee. It does not sceem probable that the existence of the trust increases the, power of the Executiv-e and the Secretary of War in the matter of alieniating sa-id trust estate. (See opinion of the Attorney-General delivered to the President September 9, 1899, as to power of local authorities of the Hawaiian Islands to dispose of portions of the public domain. 22 Op. 574.) In the opinion above referred to, the honorable Attorney-General holds that the public lands and other public property in the Hawaiian Islands can not be, disposed of except upon provision therefor by Congress, f or the reason that the f ee title to said property is in the United 1394-03. 23 354 States, although burdened with a trust in favor of the people of the island, and the existence of the trust does not change the rule. It is a general rule of property that title attaches somewhere to some one. That is to say, title does not, like Mahomet's coffin, hang in mild-air. It is apparent that the title to public property in Cuba has not passed to the sovereignty inherent to the people of Cuba, for that sovereignty is dormant and incapable of acquiring title. It would seem to follow that the correct theory is that the fee title to the public property in Cuba passed to the United States, burdened with a trust in favor of the future permanent government of Cuba. If the fee is in the United States, then, without regard to the burdens attached to the fee, the authority to dispose thereof is vested in Congress. The situation is the same as though the United States held the title to land in some other foreign country or territory belonging to another recognized sovereignty. In order to alienate said property, the action of Congress must be had. Granting that Congress has not authority to legislate for the civil government of Cuba does not weaken the theory advanced. There is a vast difference between owning property in a country and exercising the right to regulate the government of the civil affairs of the inhabitants of the country. An illustration may serve to make clear the point I have in mind. When a permanent government of civil affairs has been erected in Cuba, the transfer of the affairs now in the hands of the intervening government may be accomplished by the present officials, who will relinquish said affairs and place them in the hands of the officials of said new government. But can the transfer of the title to the public property in the island now held by the United States be accomplished in the same way? Will a deed from the military governor of the island divest the United States of its title? It seems to me that in order to pass the title it will be necessary either for Congress to make the transfer by legislative act or authorize some officer of the executive branch to make the conveyance, or after the new government has been established and recognized, to effect the desired purpose by treaty with the new government. If a deed from the military governor is not sufficient to complete the title of the cestuai lque trust, it certainly can not convey better title to a stranger. If the Secretary of War does not agree with the foregoing, and is of opinion that the existing government of civil affairs in Cuba may dispose of public property of this character in the island, the next question is, Shall the military government in Cuba exercise said authority? In this connection attention is directed to the language used by the 355 Attorney-General in his opinion as to aplplication of the Commercial Cable Company to land a cahlle in. Cuba and Porto Rico, delivered to the, Secretary of War, M.1arch 25, 189(9. (See, 22 Op., 408.) In all instances heretofore where application has beeni Imadic to this, (,)verinwnt, exercising the temporary control and go\vernmnent, o)f thie islanld of ('n1ba, for grants or concessions which usually flow from the depository o-.f sovereign powe-cr, thle EIxecutive Departments heave taken the ground that. unlder the cireimnstances by which thme U.nited States caiiie into tempnl~orarv admiinistration of affairs in Cubla, anid in view of the fact that it is the declare(I lpulrlpose of the United States w\N-heni a stable government shiall. have been there established to retire from time island amid leave the government thereof to the inhiabitanits, it would be inexpedient to grant snichl applications except in case of absolute necessity. This cautious and conservative policy is sustainedl by considlerations of pruadence, and by a proper regardl for the reversionary rights of the future governimentt of the island( of Cuba. In affirmation of the executivY policy so declared aild followed, Congress, by act approved Mlarch 3, 1899, directedl that nr o)rop)erty, franchises, or concessions of aniy kind wNhatevcr shall be granted by the United States, o)r 1y any military or other authority whatever, in the islaridl of Cuba (nbring the occlupation thereof by1 the UTnited States. See act makig appropriation for support of the Regular and '\olunteer Army for the fiscal year ending Jne 80, 1890, section 2. I deem it proper to direct the attention of the Secretary to the fact that the permanent government of Cu'ba and the locatl grovernnient of the Philippines will necessarily be requiiredl to raise revenues for their own maintenance. The amount of taixable property in Cuba tand the Philippines is not (oniparlatively large. while the cocIst of rimaintaining government therein can not be reduced.d below a total laroge enough to reqluire a high tax rate. Many nations (notably En~dand) derive re-enue f romn royalties on certain minerals (usutally- the preciouis metals) taken from the earth slibject to the soverejignty. Mfanly governments (notably Mexico and Russia) operate mi ues theniselves, utilizing the labor of convicted criminals andl soinetinmes soldiers. The Spanish Government while exercising (lomninion in Cuba and the Philippines imposed taxes on,almost everything, incluiding the exercise of the niost cominmon rights. ()stenisiblv this was done. to defray the necessary expenses of governnieiit. WVhether the policy resulted from the financial straits of the (Crownm treasuiry, the ral)acwitv of Crown officers, or the necessities of local goveranment, we are ndiulonished that the taxable p)roperty of these territories do not constitute an inexhaustible fund. The course pursued by the United States in surrendering control of the output of monev nmetals,' and gratuitously alienating its gold and silver mines, without provision for revenue to the Federal G:overnment therefrom or retaining the right to even require the continted operation thereof, has not escaped criticism. If the United States required that the gold and silver of its inines should be taken out on royalties, and that said mnines should be operated to produce even 356 a fraction of their possible output, thie minaitenance of the '" gold reserve" inl our:National Treasury would not be a (question of Issutingo bondls to buyv bactk whalt the Government gatve away in a naturafl state and then coined into money free of charge. Tihe sug-gestions,- are ofler-ed to direct attenitioni to the-, advisal)ilitv of permnittingo the lperlllanent government of C~uba to deeide for its-elf what course it will pursuie as to the valuiable public p)roperty inl the island known as ''ninerals. It does not needl to be argued that the othecers now conducting the governmilent of civil affair's inl CuJba can not dispose of said public p)roperty ais though it were their lprivate estate. The miliitary govermnent, takes the, place f,-ri the) time being of the deposed sovereignity, andl -adlministers the government by martial rule. This martiald rule1 is not the absence of all lawvs and~ the substitution therefor of the will of a militarv commander. It is but,another met~hod of adminlistering- the existing lawvs. To this end the military g-ove~rnment uttilizes as mnany civil. agenicies as possilble, tand it is only where there is an absence of the (lesired civil agency. 01. the existing civil agency can not coe-vt h xsigeergency, that the military exercises its authority or lperformls the function. The officers of the lUnitedl States Army inl charge of the military government inl Cuba recognize the necessity, inl the matter of granting mining, claims, of procee~ding pinsuiant, to some, law. Th'lerefore the order of February 8, 190(-) (her-einlbefore set forth), declares the laws relating- thereto in force under Spanish domininion ais continuing under American occupation. Inl this connection the -attention of t~he Secretary is directed to the opin ion of the Attorney-Grenertal onl the application of Ramon X~aldez for right to use the -water power of the Rivemr Plata inl Porto Rico, delivered to the Secretary of W~ar July 27. 1899, wherein the AttorneyGeneral says (212 Op.t 548) It is well-settledl law, Aid only needs to ) sttdtI) nesod that whn lpullic p)rop~ertv is ceded by onie nation to another its (lisposition and control are thereafter regulatedl and governeol not Jby the laws of the cedling nation but by the laws- of the new government. Those laws of the former government which have for their object a certain governmental policy,, of -which character are laws for the dlislposition of the public dlomain anI the, granting of quasi p~ublic franchises,, rights, and privileges to porivate indlividllals or corp~orations, cease to have any force or effect after time sovereignty of the former government ceased. (H~arcourt v. Grailliard, 12 Whieat.., 523.) Tli( United States Supreme C/ourt sayt (More v. Steinbcach, 1.27 U. 5.,8) The doctrine invoked by the (defendants, that the laws of a conquleredI or ceded country, excep)t qo far as they may affect the political institutions of tile new sovereigim remain in force after tile conquest or csession until (hangedi by him, does not aid their (lefense. That doctrine has no appllication to the laws authorizing tile alienation of any lortions of the public (lomain, or to officers charged under time for 357 mer government with that power. No proceedings affecting the riglts of the new sovereign over public property can be taken except ill pursuance of his authority on the sullject. (See also Tnitedl States r. Vallejo, 1 Black, 541; Ely's A\llllniistrator r. iUnited States, 171 U. S., 2:30.) Ordinarily the will of the sovereign reg'arditng the disposal of public property belonging to the United States is to le declared by the Congress. Up to this time the only expression of said will declare(l by Congress is that found in what is known as the ' Foraker resolution,, incorporated in the Army appropriation act, approved Ma'rch 3, '18I9, as follows: SE1c. 2. That no property, franchises, or concessions of any kindi whatever shall be1 grantedl )by the TUnited( States, or 1) any lmlilitarv or,other authltritv whatever, in tlle island of (Cula luring the occupation thereof by the IUniitedl States. If tlle correct theory )be that the legal title to this propertyt is in the United States it would seem that, instelad of authlorizing tralllnsfers of said title, Congress had placed a positive inhibitioln thereon. Continuing the investigation I take it tltat the Secretary will desire to )be informed as to the provisions of the Spanish law under which the military government in Cuba pr'opose( to grant mining rights and privileges. It seems impiracticable if not implossille to submllit a op/l,/c,' rieview of the Spanish mIliing' laws, because of tle course pursue(d by the Spanish (;ovel'rnnent in dealinrg with tile sut)ject.,Te general bases of the llinino law-s 1a1(l regulations of Spain aInd its dependencies are the royal orders of,July (;, 1Ss!t, as mend(led by royal orders of March 4, 18((8. The application of said royal orders was provided for by regulations enacted 1by tile Cortes,Junie 24, 18(8. The practical working of the provisions of the s-everal laws was utlnsatisfactory, and on December )(, 1898, another royal order was issued declaring bases for new Iiningi legislation. The Co{rtes failed to pro-' vide new regulations, and apparently for the pltrpose of )providilng for various emergencies which ar'ose, a niumber of roval ordersl (r d('crees were issued during 1869, 1870, 1871, 1787, 1I7, 1881, 1885, and 1887. (See Mines and Mllinin Laws of ILatin America, p. 100, publication of Bureau of Statistics, 1892.) A collection of these laws, publlishedl officially in Itabana il 1888, under the title of " Legislacion de minls,"' forms a lquarto volume of 108 pages. Attention is directed to the following' epitome of the mining laws of Cuba and their history, taken from a report to the State Departlment, made in 1891, by Mr. Otto E. Reimnar, then United States consul at Santiago de Cuba, which is the center of the richest mineral district of the island: As early as 185-4 Ihilip II of Spain made laws controlling tile mining industry, and these laws remained in force, or, better said, were the base of all mlifing laws tip to 358 the year 1825. ***This law (1825) was found, after it -was applied, to b~e so defective, andI in manly instances contradict~orv- that new laws an(l. royal decrees. were constantfly published. The most imaIortant of these is the law of July 6, 1859. After the Carlist war the. Govrmnt of Spain considieredl it a duty osyadd somiething- for the mining indlustrv, an/I with this obiject ordered, onl February 17, 1875, b)y royal decree, that new mining laws and regulations- should b~e made and pass the Cortes, even going( so far as to publish a base for thes-e laws. It seems that up to the lpresent this has not b~een effectually done, and the law actually in force now is the one of July 6, 1859, reformed byv the ones of March 31, 1868, December 29, 1868, and July, 24, 1871. The law of 1859 mnust (consequently serve as a base. The first chapter of this law devotes itself, reformed b~y the 1868 law, to the ob~jects which are to b~e considered minerals. These are: All inorganic, metalliferous, coinl)ustible, saline substances; calcareous phosp)hates, l)arvtina., fluorspar, p/recious stones, all, whether found in veins or strata, or iii whatever other form; this if they are worked in a well-ordered manner, oni the surface or under the surface. The sab~staacesa (bore 9//eatioiied belio//! to the St(/te, a//d n/0 0//(e c(//S diisp0// of the/lwih 0/It ti/c coace.'s'ioa of ti/e Go/er//me//I, q~irca iv its 9/a//ic by tihe yorer~ior~s o/ tie? provioces. Jo order to obtaia title to aI 9/1 tue oyppiea'at0/ for ow//caesh ip, proriayf the exhiste//ce of miuberaul,nimst 11/ nade to the g/o/era(/r o~f ti/c pro/o'We. This may b.e don)ie without consent or knowle/lge cof the owner of the land, in case the- surfac// lanIi~ of the mine sholo//hiiappen to b)elonig to other than the appllicant. Unitil the governor llas giveii p~ermlission to examinie the minhe, and sl/ouldl other ob~jectionis be i/~lae, the 1/atter m~ay l)e referred to the miniistry witlin thirty (lays; no work (-all l/e oile. TIhis permissionl is giv-e/i o/n ti/e report (/f the official n/i/ha1fg engineer (who must make such report within four l/o/lths) thirty days after such/ report. -eog Should tile 1/irie f//r which ownersllip is. thus asked for b~e situated onl lands be//g ii/- to) Pea i ) pel/)//'/(rsonls other thi/a the alpllicant for owiiership /)f such mi/e, sn/lh app/licant., wile/i l/e receives his title, n/lst laxy the owner of the land its full value an/I one-fifth m/)re. i/ould/ ti/c 0/I//er cof ti/c 1(10(/ object (19/d ref/Ill' to s'eil, or- aI p.roceer can 01 (lui//C/bly be agreed 91p0//, li/c (ti/e otvl/er o~f ti/c /a/1(i)?w/(/ be forcibly c jected 0o' e./prop/ria/Ied, beilly paidl for i/is bi//dl a pric'e antd orie -frftlh 9/ore, aI(~)i.sted by ti/ree c/pproi;sers n(//i/ed, o/le each by both co//deading parties and( ti/e G__o/er/i~ie//c/. Assoo01 as applicant has tills acquire/I title to his minhe lie may' erect b~uiidirigs and works and open shafts to operate it, this always with the approval al/d inspection (/f the (iovernme//t, milning eligi/leer. The fact (/f ac/juili/ig title is pl~u)lishell in the official bulletin. The application for owniershiil must. be accoimpanied by, a surface plan (/f thei/c ine. This plan must always I~e multanigilar lin shape, and each in/e can not exceed 20,000 square mneters ill size. (See publicationi ab~ove Ilentioned, pp. 101, 102.) It will be,seen that by these laws the Government of Spain conf erred upon thle governor of a pi'ro'ince the power- to do two things1. rp alienate the proprietary rights of the Crown in and to minerals in a natural state. 2. To grant the privilege of exercising the sovereign right of eminent domain. Conceding the Spanish mining laws to be in force in said territories, would the powers conferred llpof the Spanish governors for the purpose of rendering said laws etle('tive pass to the officers of the United States Armyv now in charge of the affairs of civil government in said territories?, 359 In his opiniion as to the construction of sewers and pavements in Halba)na (I)adv & Co.), delivered to the Secretary of War July 1(0 1899, the honorable Attorney-General says (22 1p. 527): By well-settled( law, upon the cession of territory by one nation to another, eitlier following a conquest or otherwise, * * * those laws which are political in their nature andl pertain to the prerogatives of the former government ilmme(liately cease upon transfer of sovereignty. Political and prerogative rights are not transferred to the succeeding nation. Such la-ws for the government of municipalities in sail territory as are not dependent on tle Awill of the former sovereign remain in force. Such laws as require for their colmplete execution the exercise of the will, grace, or discretion of the former sovereign would prol)ably be held to be ineffective under the succeeding power. * * * The authority of the power of the Crown and( of the Crown officers in such instances did not pass to the officers of the United States, because royal prerogatives and political powers of one government do not pass in unchanged form to the new sovereign, but terminate upon the execution of thle treaty of cession or are supplanted by such laws andl rules as the treaty or the legislature of the new sovereign may provide. IIni unlford rW. Wardwell. 6 Wa ll., 435, the IUnited States Supreme Court say: Mexican rule came to an end in that (iepartinent on thle 7th of July, 1846, when the government of the same passed into tlhe control of our military authorities. Municipal authority also was exercised for a time by subordinate officers appointed by our military comllmandlers. Such commander was calledt military governor, and for a time lie claimed to exercise the same civil power as that previously vested in the Mexican governor of tle d(epartmnent. By virtue of that supposed authority (Gen. S. N. Kearnev, Iarch 10, 1847, as Ililitary governor of the Territory, granted to the town of San Francisco all the right, title, and interest of the United States to the beach and w-ater lots on the east front of the town included bletween certain (lescril)ed points, excepting such lots as might be selected for (overnment use. * * * * * * * But tlhe power to grant lands or confirml titles was never vested in our military governors, and it follows as a necessary consequen(ce that the grant as originally made was void and of no effect. Nothing passed to the town by the grant, and of course the doings of the alcalde in selling the lot in question was a mere nullity. If the mineral is on the surface, or beneath it, of land owned by a private person, it would be necessary to secure the permission of the owner to enter upon his land and disturb the soil or to divest him of the right to object. The divestmient may be accomplished by an exercise of the right of eminent domain. This right is a sovereign right. An individual or association exercising it does so as the agent or representative of the sovereign. (4 Thompson Corn. on Corp., ch. 122.) The Spanish mining laws provide for the exercise of this sovereign right of Spain. They constitute a regulation governing a royal prerogative. Where the sovereignty of Spain does not attach, the prerogative can not be exercised unless the prerogative passes to the sovereignty in possession. The United States Supreme Court say: It can not be admitted that the King of Spain could, by treaty or otherwise, impart to the United States an? of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. (Pollard's Lessee v. Hagan, 3 How., 225.) 360 Undoubtedly the United States lllay exercise thile power of expropriation, but the right to do so is inherentll ill its own sovereignty. It is not ic-,er;,cl fronl:111y other sovereign, prinlce, or potentate, nor acquire(d by cession of territory. If this inherent power of the United States is exercised in Cubt or elsenwhere it must be by virtue of its own sovereignty or not at all. Under the (changed conditions existing in ('u}at the right cailn Inot be exercised i)- virtue of the sovereignty of Spatill. This brings us to the questionI: Has the Executive or the Secretary of War the authority to grant to individuals or associations the privilege of exercising the sovereign power of the United States to expropriate )rivate property in Cuba? I a11t not aware that this exact question has yet been subl)itted to the Attorlney-General or thlat he las rendlered an opinion which furnislles a specific answer thereto. The Congres's has not legislated with special reference to the exercise of this right in Cu})l, iand enactellnts regulating its exercise in the Ullited States are not of force and effect in Cuba. Therefore the President does not possess this aut]hority ]by virtue of 1being the Chief Executive of the laws of the United States. There is another aspect of the matter under consideration which relquires attention. That is the authority of the Conlmander in Chief of the mlilitary forces nIow engaged in the Imilitary occuptation of Cuba an(l condlucting a ililitary government therein. If the coiimmander of this mlilitLary force iimay properly exercise the rights of a belligerent, he derives therefroll authority to dispose of pulblic property and exproprliate private propexrty as his judgment may (leternline is best calculated to pronlote the ptlrposes of the military operation. If deemed necessary for the acconlplishment of the undertaking to which the nlilitary force has been devoted, a belligerent coinimander would have the sanme justification in disposing of a mine that he would have in blowing up a fort or destroying a bridge. The vital question is, May the comnmander of the mIilitary forces engaged in the military occupation of Cuba exercise the rights of a belligerent under the conditions existing in the island? Is not this, question to be answered by propounding another: Are the purposes for which the military force was sent into Cuba accomp)lished or abandoned, and if not, may not the mlilitary force continue to exercise the rights of a belligerent until said purpose is accomplished or abandoned? Ini investigating these questions, it is necessary to bear in mind that the IPresident, in his relation thereto, is not to be considered as a civil magistrate of the United States discharging his duty within the territory of the United States. He is to be considered as the Commander in Chief of the Army and Navy, personally present at the head of his troops in a foreign country. This unusual spectacle is occasioned by 361 the fact that Congress, in the exercise of the great sovereign powers possessed by the United States as a nation, directed the Commander in Chief of our military forces to employ the military branch of our Government1. To compel Spain to relinquish sovereignty in Cuba. 2. To effect the pacification of the island. 3. To enable the inhabitants of Cuba to establish and maintain a stable, independent government. These pu-rposes were declared, and the order for their accomplishment issued to the Commander in Chief 1by the adoption of the following resolution: JOINT RESOLITION for the recognitiol of tlhe independenc e of the,eople of (Iuba, (lemanilding that the Government of Spain relinquish its authority and governIment inl tlhe islandl of Cuba, tand to withdraw its.land and naval forces front Cu1l and (Cubau waters, at11 directing the President of the United States to uise the land and naval forces of the United States to carrv thlese resolutions into effect. Whereas tlie abhorrent conditions which hlave existed for nmore than three years in tlhe island of Cuba, so near our own hiordtler, hlave shocked tlhe moral sense of tle people of tle United States, have been a dlisgrace to Cllristian civilization, (ulmlinating as they have in the destruction of a 'nitedl States battle ship, withl two huntdred and sixty-six of its officers and crew, whlile on a friendly visit inl the harbor of Havana, and can not longer be en(lured, as has been set forth by the Presidlenlt of the United States in his message to Congress of April eleventh, eighteen hundred and ninety-eight, upon which the action iof Con-grss was invited: Therefore, le.solc(d I!i thie e fte (tint d lloi.se of le)r'esentt(utire.s of tie l ited States of Ai'o ric(' in. Coiyre.xs ossoobled, First. That the l)eoi)le of thle islandl of Cubal are, andl of rigtit ought to be, free and indepenlenit. Second. That it is the duty of tie United States to,demand, an(l tlhe (overnment of the United States does hereby (lemltandl, that the (overnment of Spain at once relinquish its authority andl goverinmient in the island (of Cuba and( withdraw its land an(l naval forces from Cubal and Cuban waters. Third. That the Presi(lent of the United States 1)e, an(I lie hereby is, directed and empowered to use the entire lanl and naval forces of the Unite(ld States, andl to call into the actual service of the United States tlhe militia of the several States, to such extent as may b)e necessary to carry these resolutions into effect. Fourth. That the United States hereby disclaimtrs any disposition or intention to exercise sovereignty, juris(liction, or control over sai(l islandl except for thle pacification thereof, and asserts its letermination, when tlat is accomplished, to leave the government and control of the island to its people. Approvedl April 20, 1898. (30 U. S. Stats., pp. 738, 739.) Let us supposb that the Crown of Spain had seen fit to peaceably relinquish sovereignty in Cuba and turn over its subjects in the island, their personal and property rights, and the public property belonging to the Spanish Government situate in Cuba. to the care of the United States, relying upon the declaration of Congress that the United States'would accomplish the pacification of the island and erect therein a stable, independent government. Would not the Commander in Chief of the military force charged with carrying out such declaration rightfully exercise such powers of a belligerent as were necessary to accomplish the undertaking? Instead of pursuing the course supposed Spain elected to go to war. Congress thereupon declared the war existing by1 the passage of the following act: AN ACT declaring that war exists Ibtween the United States of America and the Kingdom of Spain. 1Be it entct(ed b1? tle Senate (ntd lowoe of lReprevsentatires of the Unoited,Stctes of A tic)''cac in ('o sress (t.semnbled1, First. That war be, and the same is hereby, declared to exist, and that war lhas existed since the twenty-first day of April, anno Domlini eighteen hundred and ninety-eight, including said day, between the Ulnited States of America and the King(doml of Spain. Second. That thle President of the United States be, and he hereby is, directed and empowered to use the entire landr and naval forces of the United States, and to call into the actual service of the United States the mnilitia of the several States, to such extent as mlay be necessary to carry this act into effect. Approved, April 25, 1898. (30 U. S. Stats., p. 364.) As directed to do }iv this act, the Commander in Chief of the Army and Navy proceeded to carry on the war so declared to exist, and compelled Spanish sovereignty to withdraw from (lCuba and the Government of Spain to sue for peace. This war was a mere incident to the accompllishmlent of the purposes declared by the Congressional resolution of April 20, 1898. It was an obstacle encountered by the Commander in Chief in carryl'ing out the order given him by Congress in said resolution. But said order was not c(omplied with nor the work ended to which the people of the United States had devoted the Army and Navy when Spanish sovereignty was expelled. The pacification of the island was yet to be effected. The prejudices, animosities, hatreds, and strifes resulting fronm iany years of internal warfare were to l)e allayed, and the inhabitants molded into a homogeneous body on which the foundations of a nation might rest and thereafter a governient constructed wliich would give to the island and its inhabitants peace, prosperity, and the largest degree of liberty consistent with the maintenance of individual rights and collective tranquillity. As from time to time the sovereignty of Spain was forced to abandon the various sections of said island, and the territory became subject to military occupation by the forces of the United States, there was established a government of civil affairs in said sections whereby was maintained the protection of individual and property rights for which governments are established. -Eventually said government extended over the entire island. Such a government is termed a military government, and the duty to establish it is incumbent upon the commander of the military forces, who effects a military occupation. Military government is the dominion exercised by a belligerent power over invaded territory and the inhabitants thereof. Such a government performs its functions and discharges its obligations by what is known as martial law. 363 Chic f Justice Chase describes military government as a form of military jurisdiction, to be exercised in time of foreign war without the boundaries of the I nite(l States', or in time of rebellion and civil war within States or (listricts occupied lby reb~els treate(1 as blleigerents. (Ex Parte Milligan, 4 Wall., 141.) In this e-ase Chief ~Justice Chase detined martial law~ as ain authority called into action, when p)ublic necessity required it, in. a locality 01' district not of an enemyv's country, but of the United States, and maintainflq adlheswn) to (1we 3Ao'o'tnal G o'rcrnmnent. (4 Wall., 142.) By the expression " maintainling adhesion I understand the Chief Justice to mean continuing within the sov-ereignty. -It will be seen that a. military government takes the, place of a sumspended or destroyed s'orere~ynty aend of necessity continues until ai permanent sovereigntyis agin established. in the territoryv. In Cuba a permanent sovereigntyv is not (estalblished, and therefore the military g-overnment continues. That miihtary grovernment may legally continue ')n bdllo (e.(fhte equally /i 17af~rante 1)410 was the substance of time holding in Lamtar i'. Brown, 902 U. S.,1 ST,7 193 et seq. (See also Leitensdorfer v. Webb, 20 I [How., 1743; Dowv i. Johnson, 100 U. S., 1435: Texa s 9% White, T Wall.. TOO-; The Grapeshot, 9 all.. 132; Burke _'.Miltenbllrger, 19 Wall., 524; Lewis v. Cocks, 23 WalI., 4W39; 'Mechianics' Braiak v. Union Bn,2 Wal,2T(3; Pennywitt v. Eaton, 115 Wall., 3852.) In discussing' this bhase of military government Poinermv stays: Military government '' is the authority lby which a co.mmnandler governs a conquiere(. (listrict when the local institutions hatve been overthrownv and the local ruilers (Iislplacedl anl lbefore Congress has hadl ani opportunity to act uinder its power to (ispose of captuires or to govern territories. This auithority, in fact, belongs to thle President; and it assumes the war to be. still raging and thle final. status,, of tihe conqueredl province to ibe unlet~ernlinedl, so that the apparent exercise of civil functions is reallIY a measure of hostility. ''MAfartial law'' is something very (lifferent. It acts, if at all, within the limits of the country against civilian s wAho have not openly enrolled themselves as belligerents among the forces of an invading or a rebellious enemy. (Pom-eroy's Constitutiommal Law (Bennett's 3d el. ) par. 712, P). 595.) Birkhirner says (p. 290): The experience of the United States (iovernmnent hut adds to the evidence derivable almost universally fromt thle history of other natiomis that mlilitary government ceases at the pleasure of himf who instituted it upon such (comlitions as hie elects to impose, and that its termnination is; not iii point of time coincident, either necessarily or generally, with the cessation of hostilities between the contending belligerents. The course pursued by the United States at the close of time civil war establishes the acceptance byv this nation of the doctrine that military government inay continue' after the close of hostilities and until the purposes for which the war was entered upon, or rendered ob~vious by the war, are accomplished, and to this end may exercise the rights of a belligerent. As regards private rights, the civil war ended August 364 9,0, 1866. (McKee v. Rains, 10 Wall., 22; United States r. Anderson, 9 Wall., 561; M IElrath v. United States, 102 U. S., 426.) As regards public matters, there were two proclamations made by the President declaring that the war had closed-one, issued April 2, 1866 (14 Stat. L., 811), embracing all the late rebellious States excepting Texas; and the other, issued August 20, 1866 (14 Stat. L., 814), emlbracing Texas. The Executive undertook to place the States which had engaged in the rebellion on a footing of equality with the other States of the Union. Congress antagonized this position and passed what lare known as the "reconstruction acts." (14 Stat. L., 428; 15 Stat. L., 14.) These acts provided for military government, possessing sovereign powers, to be exercised by martial rule in tle several States mentioned. For this purpose said act required: That sai(l rebel States shlall be livided(l into military districts andl lmade subject to the military authority of the United States. (14 Stat. L., 428.) The powers given to the district conmmnders were as follows (sec. 3, chap. 30, 14 Stat. L., 426): SEC. 3. And 1be it filrther e'nctcd, That it shall h)e the duty of eacll officer assigned as aforesaid to protect all persons in their rights of person ald property to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals; and to this end lie }may allow local civil tribunals to take jurisdiction of and to try offenders, or, whien in his judgment it may be necessary for tile trial of offenders, he shall have power to organize military commissions or tribunals for that purpose, and all interference unller color of State authority with the exercise of military authority under this act shall l)e null and voi(l. The reason for such government was declared by the preamble as follows: Whereas no legal State governments or adequate protection for life or property exist in the rebel States of [naming them]; and -whereas it is necessary that peace and good order should be enforced in sai(l States until loyal and republican State governlments can be established, therefore. If such reasons were sufficient to justify the continuance of belligerent rights in the military government of territory subject to the sovereignty of the United States and within the territorial boundaries of the United States, are they not equally potent in the instance of Cutba-, The Supreme Court refused to interfere with the enforcement of said reconstruction acts or the exercise of the authority conferred thereby. (State of Mississippi?. Johnson, 4 Wall., 475; State of Georgia t. Stanton, 6 Wall., 50; Hlandlin v. Wickliffe, 12 Wall., 174; White v. Hart, 13 Wall., 646.) The court held that this legislation was political in character and therefore outside the jurisdiction of the judicial department; that in creating such legislation Congress exercised certain of the sovereign 365 powers of the nation which exist, b)ut atre reserved to the peop~le lby the Constitution. No one ev~er claimed that the government cre-ated 1by this legislation was that pr-ovided for by the Constitution of the U nited States for the States of the U~nion. it found its legal justiticlation in 1)eino' a(n exercise of the inherent right of national sovereigynty to adequately deal with a national emiergency. The situation then existing' is thus descrilved by Birkihimier: But it was also true that the civil governments in the late insurrectionary States were inimicial to the Union; that society there was iii a (langerously dlisordlered(l olidition; that (ieep)-seatc(1 eninity wa-,s at this period entertained lbv the leading peop~le toward implortant Iprhicilples of govern-mental ~)olicyv wh~ich. thos-e, who had savc(l the TUnion had resolvedl shouldl be incorp~oratedI into the Constitution. (IXIV amendinent. ) Technically it might be terined l timoe of peace'' lbut in reality it wvas far differeut, as that phlrase is generally lunderst~ool. (Military Government. and1 Martial Law, I ed., P). 388. In Texas the military government installed under the reconstruction acts continued unitilI April 1 6, 187 0. P~rior to the psaeof the reconistr~uc-tion acts in 1867, the people of fextas (called a constitutionlal,onlvention which convened1 on Februlary 7, 1866, and so aminended the constitution of the State as to mneet the changed conditiomi of affairs broughlt about by, the result of the war tand the fourteenth ameni(I(ment t~o the Constitution of the United States. These aniendmnents wiver ratified by the, people. All officers provided for by the State constitution were(" elected and enteredl upon the discharg,)e of their respective duties. The legislatulre iniet an(l l)(asse~d lwandl the State grovernmaent was again11 admninisteredI Ib officers,, holdingr under- the. termns of the constitution; aill the courts were held 1y judgres electe~d as the, constitution prescribed, and county andI mnunicilpal officer5s selectedl in t~he ~samie manner entered upon the discharo'e of their- tlities. But the, reconstructiomi act of 'Mar-chb 1867, (leclare(l that no legald State gv ernment ex~isted in Texas, anid pr-ovided further- for the miliitary government of said State. The officers elected- tinder the. constituitionl w(iere remov-ed fr-omoffic~e anId others altpoinited iiittheir plactes. Amiong thenm, the gover-nor of the, State, elected undem' the -onstitution as amnended in 1866, w~as displaced, and at pr-ovisional governor- Nvas appointed,and held the office until Septenmber 30, 186(9, whe bhe r-esigned, anid fr-omthat timei until Janttuary,8, 18701,thieexecuitvNed(luties were, performed by,anl adjutant. of the, general in command, placed in charge of civil affairs. Oin April 16, -18 70, by General Or-der Nso. 74, the iiiiaycoinman dcr declared thme State had resumed practical relations to the General Government, and all the authority conf erred upon him by the reconstruction laws was remitted to the (ciyil authorities. Speaking of the powers exercised by the military officer in comuiand of Texas, the supreme court of Texas say: 1in Texas this officer exercised owerO\s~ legislative and executive, if not judicial. (Daniel v. Hutcheson, 86 Texas, 57.)_ 366 In the same (case the court say: That the State was governed by military law, even though its own laws may to some extent have been recognized( and admninistered, must lbe considered an established fact. The power of the United States Government to impose such a rule upon the State must be recognized as fully, under the facts existing, as though Texas had theretofore been an independent sovereignty, having no relation to the lnite(l States than that usually sustained by one independent nation to another. Civil war llad existed of magnitude seldom exceeded, resulting in the overthrow by force of arms of the cause the State had espoused, and the occupation of her territory by a hostile army. This occupancy was continued, and under the laws of war furnished groundl for the establishment of military law. (86 Texas, p. 60.) In another case the supreme court of Texas, in speaking of tlhe recolstruction acts, say: The National Legislature used its legitimate powers with moderation and mnagnanimity, endeavored to encourage the formation of republican governments in these States, and bring the people back to a due appreciation of the law and of the liberty which is secured to the free enjoyment of every citizen under the Constitution. (33 Texas, 570.) The inherent powers of sovereignty whereby military government was installed in the territory of the rebellious States were exercised by Congress. But the authorities hereinbefore cited, as well as the recognized laws of war and usages of nation, establish that said sovereign powers may also be exercised by the comnmander in chief of the military forces. Especially is this true while the condition of war, i. e., the national necessity for its exercise, continues. In the instance of Cuba, its exercise by the.Commnander in Chief necessarily results from the direction given to that officer by the resolution of Congress of March 20, 1898. Whether or not Congress can now recall this authorization need not be discussed, as Congress has not attelnpted to do so. The situation in Cuba is quite different from that resulting in Porto Rico from the cessation of hostilities and the treaty of peace. Porto Rico was not within the contemplation of the Congressional resolution of March 3), 1898. The invasion, military occupation, and military government of that island resulted entirely from the war, and not the direction of Congress. By the terms of the treaty of peace the sovereignty of the United States permanently attached to the territory of the island, and when the war ended the military government erected in the island ceased to be a su1,tit ate for a sovereignty and became the representative of the sovereignty of the United States, and charged with the protection rather than the (drection of sovereignty. If the doctrine is correct that a military government is a substitute ad,interim for sovereignty, and that the purposes of the one erected in Cuba are uncompleted, and to promote said purposes the Commander 367 in Chief may exercise the rights of a belligerent, it follows that said government may dispose of the public property within its jurisdiction and exercise other powers of sovereignty, when necessary for the purposes to be accomplished. The questions involved in such exercise are ordinarily to be resolved by the military commander. In the instance of pullic property in (Cuba. the doctrine of 2pot.1;ry is not involved. That doctrine deals with the rights of the previous owlnel', and the rights of the previous owlner of the public property in Cu'ba were disposed of by the treaty of peace. Aside fron the question of military necessity, the questions involved relate to the inchoate rights of the nonexisting independent governnment of Cuba and the duties and obligations of the United States resulting from the relation of trustee and ce st;i a qe tr',,t. If the Commiander in Chief shall be of the opinion that to accomplish the pacification of CubaJ and the establishment of a stable, independent government in the island it is necessary to develop the natural resources thereof, and to that end shall detelrlilne to provide for the working of mines by private enterprise, it will be necessary to find out, before recourse is had to such plan, if such action is prohibited by Congress by the "Foraker resolution." For its more convenient examination said resolution is set forth in full (see 30( Stat. L., 1074): SEC. 2. That no property, franchises, or concessions of any kind whatever shall be granted by the United States or by any military or other authority whatever in the island of Cuba during the occupation thereof by the United States. Approved March 3, 1899. With reference to the foregoing enactlmenlt tie Attorney-General says: While not meaning to concede that Congress, by legislative act, has power to restrain or control the proper exercise of tlie powers of tle Commander iIn Chief of the Army and Navy of the Unite(l States, occupying un(ler the law of belligerent right foreign territory-a question that may well l)e openl to doubt-yet the expressed will and desire of the Congress, conforming as it does to tlhe previously established policy and practice of the Executive Departments, is entitled to the reslect of the Executive D)epartments, and ought to be followed, unless sonme high necessity requires otherwise. (Op). on App. of Cable Co. to land cable in Cuba, March 25, 1899. 22 Op. 410.) The doubt suggested by the honorable the Attorney-General applies with special force to the prohibition agains.t grants "by any military or other authority whatever in the island of Cuba." Attention is directed to the fact that the " Foraker resolution" was passed March 3, 1899. This was during the interim between the protocol of August, 1898, and the exchange of ratifications of the treaty of peace in April, 1899. Technically, the war with Spain was not ended, and the opposing forces were still belligerents. This presents the question of the authority of Congress to direct and control the action 3f8 of the Collmlllander in Chief regarding matters illcident to carryinlg on military operations of an actual war wag'ed ill a foreign country. Bennett's Edition of Pomeroy's Constitutioinl Law (3( ed.) lays down the rule as follows: This military law, or, in {other wor(ls, this co(Ie of positive, ena(cted, statutory rules for the governlent of the lani(l an(l laval forces, is something very different frolll martial law, w-hich, if it exists at all, is unlwritten, a part aiid parcel of the mleans an(l methods b)y which the Comlll-ander in Chief lmay wage effective war, somlething above and bleyond the jurisdiction of Congress; for that lody has no direct authority over the actual conduct of hostilities when war has been initiated. (Sec. 469, p. 385.) The same author further says: When actual hostilities have collmlencled, either through a formal declaration made by Congress; or a belligerent attack ma(le by a foreign government which the President mnst repel by force, another blranch of this function as Commander in Chief comes into play. lie wages war; Congress does not. The Legislature may, it is true, control the course of hostilities in an indirect maniner, for it must bestow all the mtilitary mIeans and instruments; llut it (an lnot interfere in any direct manner with the actual belligerent operations. Wherever )e the theater of the warlike movements, whether at home or abroad, whether on land or oin the sea, whether there be an invasion or a rebellion, the P'resident as Commander in Chief imust con(duct those movements; lie possesses the sole authority and is clothed with the sole responsibility. (Sec. 706, p. 591.) Chief Justice Chase, in the minority opinion in Ex Parte Milligan, said (4 Wall., 139): Congress has tlhe power not only to raise aold support and govern armicies but to declare war. It has, therefore, tlhe power t:) provide bly law for carryin g on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor alid success, except sitch.ts ioiteferes 'ith the 'eo)om(and of the forces a(it the conduct of c(mpai'ns. That p)ower and (luty b)elong to the iresident as Conimmander in Chief. Both these powers are derived fromn tlhe Constitution, butt neither is defineIl by that instrum-ent. Tlheir extent must be (leternmined by their nature and by the principles of our institutions. The power to make the necessary laws is in Congress; the power to execute in the Iresidlent. Both powers im)ply manyv sublordinate andl auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upt)on the proper (tuthoritij of the )Presideitt. In the (ase of Brown r. United States (S Cranch, 110) the United States Sutpreme Court held that during the war of 1812 the private property of English subjects situate in the United States at the coimmencement of hostilities could not be seized by a )private citizen and condemned by proceedings in admiralty instituted on behalf of the individual making the seizure. In the statement of facts the court say: It does not appear that this seizure was nmade under any instruction from the President of the United States; nor is there any evidence of its having his sanction. * * * On the contrary, it is admitted that the seizure was made by an individual and the libel filed at his instance by the district attorney, who acted from his own impressions of what appertained to his duty. (Pp. 121, 122.) 369 The court held that the (cation had tile undoubted right to seize and confiscate such 1)roperty, but such sovereign right could not be exercised lb individuals or the courts in the absence of authorization by Congress. In writing the opinion of the coulrt Mr. Chief Justice Marshall says (pp. 122, 123): Respecting the power of government, no (loul)t is entertainedl. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found, is conceded. Thle mitigations of this rigid rule, which the humane and wise policy of modern timles hias introduce(l into practice, will more or less effect the exercise of this right, but can not iml)air the right itself. That remains undiminiiished, aind when the sovereign authority shall choose to l}ring it into operation the judicial department must give effect to its will. In expressing his individuall opinion in that case Mr. Justice Story said (p. 152): The act declaring war has authorized thle Executive to enmploy the land aind naval forces of the United States to carry it into effect. When and where shall he carry it into effect? * * * Upon what grounld can lie authorize a Canadian camlaaign, or seize a British fort or territory, and occupy it lby righit of capture and conquest, I am utterly at a loss to perceive, unless it be that the power to carry the war into effect gives every incidental power which the law of nations authorizes and approves in a state of war. Continuing thle discussxion, lustice Story sys (pp. 153, 154): My argument proceeds upon thle ground tllat when the legislative authority, to whom the right to declare war is confided, las declared war in its most unlimited manner, the Executive authority, to whom the execution of tlme war is confided, is bound to carry it into effect. lie has a discretion vested in himg as to the manner and extent, but he can not lawfully transcend( the rules of warfare established among civilized nations. Ile can not lawfully exercise powers or authorize proceedings which the civilized world repudiates and disclaimes. Thle sovereignty, as to declaring war and limiting its effects, rests with the Legislature. The sovereignty, as to its execution, rests with the President. If the legislature do not limit tlhe nature of the war, all the regulations and rights of general war attach upon it. The authority under examination is not that of confiscation. Confiscation of this property would be to dispose of it and apply the proceeds to the use and benefit of the United States. Such a course is not contemplated, the desired object being to so use the public property of Cuba as to best promote the general good and future welfare of the island, the practical question being whether the present and continuing benefits of certain action will compensate the future government for the loss of the property. Ordinarily the commander of a force engaged in military occupation does not undertake to dispose of public property of a permanent character. This arises not from the want of authority to dispose of the title secured by invasion, but from the fact that the tenure is so unstable, being dependent upon the power to continue the occupation. In the instance under consideration the title secured by military 1394-03 24 370 occupation has been confirmed by treaty with the prior owner. If the property is alienated by an exercise of sovereignty under belligerent right, the person accepting the title may be protected by requiring the future permanent government of Cuba to accept the public property in the island burdened with such conditions as the United States has seen fit to impress upon it during the period it administered thereon.' In view of the reconstruction acts it can not be said tlat Congress has not exercised the authority to create and regulate lilitary governments maintained as war necessities. In the several cases in which these acts were assailed, the Supreme Court declined to pass upon the l ight of Congress to enact such legislation, basing its refusal upon the proposition that such legislation was entirely and exclusively political, and, therefore, without the jurisdiction of the courts. The unfortunate controversy between the Executive and Congress which occasioned such legislation is too well known to require statement. Congress insisted, and properly so, that the Executive had exceeded his powers and encroached upon the powers of tle legislative )brtanch in attempting to provide for the permanent civil government of the territory subject to military occupation and to adjust or establish the permanent political relations of said territory to the United States. It is not so apparent that il resisting said encroachment Congress did not invade the province of the Executive and exercise powers properly belonging to the President as Comalnadler in Chief of the Army and Navy when it assulmed direction alld control of the military governments and legislated therefor. That the sovereignty of the United States nmay create and maintain such governments, under proper conditions, is evyond controversy. Which instrument of said sovereignty-the Executive or the Legislative-is to exercise such power of the sovereign is by no means so well settled. From the authorities hereinbefore cited it appears that the Supreme Court has affirmatively declared that the President as Commander in Chief may properly exercise said sovereign power. As to the correctness or propriety of such exercise by Congress, the court considers itself without jurisdiction to determine. There are potent reasons why Congress should not exercise this power, even if it possesses the right, but they are properly to be addressed to the discretion of the Legislature, and to discuss them herein would unnecessarily expand a report already unduly extended. In the foregoing report administrative questions have been discussed with a liberty not possessed by the writer and ordinarily not aSee Platt resolutions respecting the Constitution of Cuba, 31 Stat. L., p. 371 to be exercised by him, but it seems llnavoidal)l in properly presenting the questions involved. The 'questions discussed in the foregoing report were referred to the Attolrney-General, who ren(lered an opinion thereon ias follows: DEIpAIrTMENT 1' JOP FSTICE, l' ft.I,,igote, C1. (,,S'pteme l('r 8, 1900. SIR: I have the llonor to acknowledge the receipt of yor (commlunication of Augulst 7, 1900, tulbmittillg for my opinion tile follo\wing qucestions: "1. I)id the Sl)anish minining laws continue in force ill Culla l)by virtue of tlhe laws of war an(l of nations after the American occupation of tlhe islandl' "2. May the military government in Cuba (conltinue thle grantiig of milineral claims in that island upol)n colmi)liance -witli tlie provisions (.f tlhe miilg law as existing prior to tile Amierican occupation? "3. I)id tlhe powers poessesed by tile Spanish officials for tile adlliiliistration of sai( lawTs pass to the officers of thle existilg military go-velrnmet; that is to say,, iay tlie present civil governors of tile existing provinces )of Cuba alienate mlilerals ill a state of nature in Cuba l y executinrg alnl deli-vering dleedst to minin ('laiils p)lrsualllit to the S)panish} laws'? "4. Ilas the military governmlent -f Cuba t}le righlt to c(ofer iuio1 a-li imldivilual the privilege of exercisillg the righ-lt of elinent (11tdomain bv virtue of tle SpIallnisil law regulating tile exercise of said righlt in conllnection with Ililles andl Iinlerals? "5. May the President of tile Inlited States, as (Commander in Chief (of tile Army and Navy, now exercise tlhe power of legislation and provide for tle alienation (of mlillnerals and the (reation of Ililling rights ill Cual)? "6). May tlie Presidlent delegate su(tch right of legislationl to t le Secretary (of War, tlhe nilitary governor (of (Cuba, -)r,otlcer officer of tlile military governmt ent of tlle islalnd? "7. Are similar questions arising ill tile Philippinles to be governeld byt tili rulles al)plicab)le to those arising in Cuba?'' Accompianying your letter is a report from (Ciharles E. Mlagonl esq., law (ftlicer of the War Departmenlt, Iivision of Ilisular Affairs, ill which tlie laws of Spain prevailing in Cuba prior to the relilnquishlllent of sovereignty thereinl by tile treaty of Paris are stated. Assuming tilis statement of Spanish law\ to be correct, thlel all inorganic, metalliferous, comlbusti)le, saline sulbstallces, calcareouis phospl)lates, barytiiia, fluor spar, precious stones, wlletller fould in veins or strata, (,r in whatever otiler form, belonged to the Spanishl Crown, and no one \was authorized( to (ispose of thlel without the concession of the Spanish (;overnment givenl ill its IamIe!by tile governors of tile provinces. Tile Inethod of obtaining title to a minle und(er Spanisli law is set forth as follows: "In order to obtain title to a mine, application for ownershilp, provilng tlle existence of mineral, mnust be made to the governor of tile province. "This may be done without consent or knowledge of the owner of the land in case the surface land of the minie should happen to belong to other thlan the applicant. "Until the governor has given p)ermissiol to examine tlle ile (and lshould other objections be made, the matter may be referred to the lninistry within ttlirty (lays) no work can be done. This permission is given on the report of the official nlining engineer (who must make such report within four months) thirty days after such report. "Should the mine for which ownership is thus asked for be situated on lands belonging to a person or persons other than the applicant for ownership of such mine, such applicant, when lie receives his title, must pay the owner of the landl its full value and one-fifth more. 372 "''lould tile owner of tile land(I object an(l refuse to sell, or a price c(ail not ainicalvly ibe agreed( ul)I, lie (the owner of tile land) nlav b)e forcibly ejected or explrol)riate(l, beivng pai(l for his landl a price and one-fifth more, adjuste(l )y three a ppraisers nalled, one each )by lbotlh contending parties and the Government. ".s sooni as al)p)licant ]as tlhus acquire(l title to his dine lie mnay erect b)uihlirgs andll works, an(1 op)ell shafts to operate it, this always with tthe appr,,oval an(l inspectioni of the (;overmiment minling engineer. "Tlhe fact of acquiring title is published in the official bulletin. "Thle aipplication for ownership Imust be accompanied )by a surface plaii of tlhe miine. Tlis I)lan nmust always tbe mnultangular in shape, and each lliine call not ex(ceed 20,000 square Ineters in size." It thius appears that mines, mlinerals, and mlining righlts in Cubl)a were veste(l in thle Crown, and that tle granting of mlining or lllineral righlts to an individlual was an exercise of the imperial prerogative. When Spain relinquished her sovereignty in Cuba she )arted withl all the royal prerogatives. The laws -which theretofore had governe(l tile exercise of pIrerogative rights of the Crown of Slain di(l not pass to the successors in so-vereigznty, whether such successors l)e (onsidlered the Unlited( States of Amierica as truste(es for thle pacific(ation of the island or the people of (rlba in a congregated( sense. (See MIulllford?. Wardwell, 6( Wallace, 435; P'ollard's Lessee r. I-agtan, 3 Hloward, 225; Ilarcourt r. (;aillaird, 12 Whleaton, '52:3. See also, 22 Opillions, 514, 521, 54(, 551.) I ain of opinion that under thle plrincille of tlese dlecisions andl of the olilliolns heretofore reldered ly iie that hlave b)een referred to, the Spanish Ilining laws were not continue(l ill force ill Cubla by virtue of tlle laws of war or of nations, or according to any otiher principle of jurisprudence, after the Amnerican occulation of the islandl. The p)OsesSsion of Culba was wrested(l )v the I'nited States froll Spain by force of arnms, unlder tlhe constitutional d(irection of tile President of the UTnited States as Colmander in (liief of the Armln and Navy, in pursuance of the joint resolution of Congress passe(l April 20, 1898. This resolution declared "t'hat tile Lnitedl States hierely d(isclaims any (lisposition or intention to exercise sovereignty', jurisdiction, or control over sai(l island exceplt for the l)aciiication thereof, an(l asserts its determination, whenl that is acconplisled, to leave thie governnm'ent and control of the island to its Ipeol)le."' Both by the rules o(f pubflic law that apply to foreign territory seized and helhd as a conqluest amal by the termns of tle resolution of Congress the U nited States, upon taking i)posession of the islandl, rightly entered upon the exercise of sovereignty, jurisdiction, andl control over sai(l island. A1ll the usual incidents of sovereiglty andl jurisdiction pertaini to the inilitary occupatioin originally gained by force of atrlns and noiw maintained in pursuance of tile treaty of peace. It is true tlat that sovereignty and jurisdiction are exercised(l y the United States as a trustee for the benefit of the people of Cuba, but the 1inited States has a (listinct and well-defined duty and purpose in connection with Cuba, namely, to govern and control the island, to "exercise sovereignty, jurisdiction, and( control over it" (to use the language of the resolution) for its pacification. No limitation upon the ordinary power of a conqueror over con(luered territory is created by thiis trust. The United States is bound, ill good comlscience, to exercise its temporary sovereignty anld control for tile blenefit of the Cuban pIeolle; but as to what acts of sovereignty it will perfo)rin, the particular mnanner in which it will perfornl theim, and the subjects upon which it will pernit its sovereign force to ol)erate, the United States, acting thlrough the I'resident as Commnander in Chief, is the sole judge. The public property of Cuba, by the treaty of peace, was not vested in the United States as a proprietor, but had theretofore been partly in its possession as conqueror, and the reinainder was )by Spain (leliveredl ov-er to its possession as conqueror and as trustee for the future benefit of the Cubani people. Cuba, therefore, rightly contin 373 ufes to lbe governel unl(ler the law of belligerenlt rig(rit aLl lnot lunler tle (lolnestic laws of the Unite(d States. A (cr(ling to tlhe law (,f ibelligerent riglit, the will (of tiie conqueror suppllants tle fornmer p)olitical laws and1l powers which( Irevaile(l ill the conquered territory, an(l tle conq(lueror may mlake s(ucl new laws, rules, anld rerlllations as hle sees fit. (Brownl. U. S Crulli, 110.) 1lnder this lrilnc(ille it is lawful for tile con(lueror, ill a(lllillisterilg the (onquere(l territory, to makle s1l(.[1 use of tile property previously- belonrilg to tite former sovereignl as lhe sees fit. There is, thlerefore, in the T'resident of tile Ilnite(l Statesy, acting )by' virtlue of hlis (omlstitutinal authorit- as Coimman(ler in Chief of thle Army an1l Navy, adle(late pmwer to use andl make displosition of property in (C'lua forllier ly elonlgiig to the ('rown~ of Spain, or sullject to the imIperial plrerogative, an(l tlis inc.luldes tle righlt to.lispl:ose of inining an(l other lplroperty formerly belonging to tlhe Slpanisl Crown. Whlethler this power of tie Presi(lent has )been a(le(luately c()nferrc(l 11l()l the ilitary governor or other Ameri.can officers in ('ul)a all unalle to say, as I am1 not firinislhed withl the, ordlers.,f your T)epartmnent which} have b)ee~n heretofore issle:l, l, ut, ill Illy judlgmient, the ]Prei(dent, as C(omllan(ler ill Chief; c()l(ld authorize thle mnilitary governor of Cuba to lnake grants of mining rights, if tile lresid(let t (lesire(l to( (1( so. I l)eg to suggest, however, tlhat whether such a l)(wer sm,)mil(1 1) eox(e(is(l )v tle President or t)e ly hliim conferred upon tile mlilitarv governmenllt t ill (1)la is a questi(on involving imnp)ortant ani( (delicate c(lnsid(erations, ill (conIe(ction w-ith wh-llich I call y-our attention to(: the language o(f lan opinionl ren(le re(l hy ime to y!(mr plredle('essor on the app)lication. of the Co(llinercial Cable (Comnpanya f(or leave to ]ali( its cab)le oil the island of Cuba. (22 Opinions, 408.) Similar (luestions arising ill the Philippine Islands wm 11(l not 1)0 goveried('(l y the sainie rules applicable to (''uba, f(r the re(ason. that tthe Ih'lilippillne Islalnds have 1( lee ced(e( to tle Unite(l States, anlll whatever 1)roperty ()orIlpubtlic rigrlhts pIe'rtailne(l to( Spjain at the time of tihe (cessiion ]have b(een transferred( to tlhe T'nited( States an(l hlave beco'(molie its pro)erty and( can oinly be dlisI)se(l of ill a((corlancell withi t]he \-ill (,f (m(,l)rress. (22 Opinions, 5.44, 54t.) Very respectfully, Jolmx \. (;l(;(;s The SECRET;ARY O(F W\tR. By direction of the cScretalry of W\, ar, the chief of tme ID)ivision of Insular Affairs on Septemllber 17,:1,()0, tlralnsllitted. copies of the foregoing report and opinion of the:Attorlell-(General to the militatry governor of Cuba, the civil overnlor of tle P'hililppine Isllands, and the commander of the U'nited. Stattes mlilital'y forces in tile 'Philil)illne Islands ''for their inlformation." 374 THE RIGHT OF MUNICIPALITIES IN CUBA TO GRANT PERMISSION TO RAILROAD COMPANIES TO CROSS OR OCCUPY HIGHWAYS, STREETS, AND PROPERTY BELONGING TO SAID MUNICIPALITIES, AND THE PROCEDURE TO BE FOLLOWED IN CONFERRING SUCH PRIVILEGE. [,lllmllitte1 April 20, ])01. ('ase N(,. 2433, D)ivisioll of Ilsular Affairs, War I)epartment.j Sil: I have the honor to acknowledge the receipt of your request for at report on the above-entitled subject, and in compliance therewith I lhave the further honor to submit the following: The territory of the islanld of Cuba is apportioned into political sul)divisiolls called llunicipalities. These resemlble townships in the States of the Union, and taken together include the entire island. Under the laws of Spain these municipalities were authorized to ac(luire property the same as individuals, firms, or corporations, and to receive, maintain, and convey title thereto. lrsuantllt to such authority said municipalities have acquired title to real property including lmany highways, streets, squares, lots, and otheli parcels of ground, of which they were the owners at the titne the,military occupation of Cuba?b the forces of the United States was established. Under the laws of Spain the alffairs of said mnlticipalities were conducted,y 1 a lmunicipal council, called the ~tayanita,, lent',;' t headman or mavol'. called the,tlcalt/d, and other' officials w\hose authority and duties c(ol'rresponded to those of municipal officers in. the States of the Unionl. While Cublll (cotinuled unlder Spanish sovereignlty the atction of these municipal ofticicals in many nmatters relating to municipal affairs werle subject to the approval of the officers of the general administratioll of the island, that is to say, the officers of the Spanish Crown exercising the powers of sovereiugntv over said island. This suriveillance was ilaintained for the purpose of preventing sai( lmunicipalities from rendering' thenmselves incapable of complying with the requirements of the national Government ill the matteri of taxes duly inmposed, and frollL interfereing with the general pur'poses of the national Governlennt in matters relating to the general adilinistration of the island. The military occupation of (Cu}a }by the forces of the Unite(l States being effected, the Spanlish laws relating to municipalities and munlicipal affair's were ('ontinued in force under the military governmnent, with such mlodifications as were }necessary to adapt thenm to the new conditions. Upon the withdrawal of Spanish sovereignty it resulted, of course, that the surveillance and authority over said municipalities and lllunicipal,affairs theretofore exercised by the Cr'own of Spain and the ofticers of the general administration of the island maintained 375 under Spanish sovereignty ceased. Such authority as was there. after to be exercised over municipalities and municipal affairs in Cuba by tile officers of the general administration of the affairs of civil government in Cuba is not derived froml, dependent upon, nor regulated by the laws of Spain. That authority arises fronl tle laws of war and of nations appertaining to the conditions found to exist in Cuba as the results of a war. The present incumbents of the municilal offices inl Cuba, continued in existence under the military government, wrere elected thereto by the inhabitants of the several municipalities.. (See Order No. 164, Headquarters Division of Cuba, series 1900.) The laws of Spain relating to municipalities in Cubal are substantially the same as the Spanish laws relating to municipalities in Porto Rico. President McKinley, in his message to Congress dated December 5, 1899, with reference to Porto Rico, says: The cities of the island are governed under charters which prolably require very little or no change. So that with relation to matters of local concern and private right it is not proballe that much, if any, legislation is desirable. (P. 48.) The President, continuing to speak with reference to Porto Rico, says: In the minicilalities andl otler local sub(livisions i recommliend that the lprinciple of local self-governmlent be apl)lie(l at once, so as to enlable tlhe intelligent citizens of the islaiin to participate in their own government a(nd to learln )y i)ractical experience the duties and reqluiremients of a self-contained and self-governing people. (1. 50.) The policy thus recommended by the President to Congress for adoption in Porto Rico was, )by direction of tlhe President, adopted and pursued in Cuba. (See Order No. 164, Ileadquarters Division of Cuba, series 190)0.) The progress made toward the independent administration of their own affairs rb tile llunicipalities of Cuba at this date (April 20, 1901) is shown by the following orders froml Iteadquallters Division of Cuba, series of 1900: Nos. 123, 124, 138, 201, 211, 21, 232, 252, 253, 254, 262, 270, 275, 3010, 3 314, 318, 355, 355a. 449, 3466, 519. The situation is, that the powers, rights, and privileges conferred upon municipalities in Cuba by the laws of Spain are found to be proper and right, and are to be exercised and enjoyed by said municipalities, acting by anld through municipal agents and officials duly elected by the inhabitants. One of the first uses made by the municipalities of Cuba of the right to independent action was to petition for increased and improved railway facilities. Perhaps no demand from Cuba has been more insistent than this one. An examination of a map showing the railways in Cuba discloses that there are a number of short lines of road, each 376 starting from a seaport and extending into the interior. This brings a small area of territory into communication with a seaport; but these roads lare not connected with each other and do not afford conmmnication between the cities or different portions of the island. For many years Cuba has been a veritable military camp, wherein Spain and the revolutionary forces engaged in constant military maneuvers. It is apparent, even to a mind unskilled in military matters, that as a military measure it would have greatly benefited Spain had there been in Cuba a systeni of railroads connecting the different parts of the island and enabling the Spanish Government to easily and rapidly transport troops and munitions of war to such parts as necessity required. I think it is not too much to say that had Cuba been adequately supplied witli railroads the insurrection would not have assumed proportions which induced the Spanish Government to resort to measures which justified intervention by the United States. The material interests of the island, such as the marketing of tropical fruits, transportation of logs and other products of tropical forests, ore, stone, etc., and agricultural products, required railway facilities, not to mention the minor benefits of rapid transportation. During all tlis time capital, both foreign and domestic, was anxious to engage in railway enterprises in Cuba. During the two years last past 1 have made numerous inquiries of persons well informed as to affairs in Cuba for the purpose of ascertaining why the Spanish Government declined to permit these short lines to be extended and connected, so as to form a railway system which would furnish adequate railway facilities to the inhabitants of the island. In every instance the explanation given was that the carrying trade of Cuba was in the hands of a Spanish company owning a line of vessels and affording transportation by water; that it was to tlle advantage of said company to have railroads extending into the interior and l)ringing merchandise down to the seaports, and to its disadvantage to have said roads so extended and connected as to afford all parts of the island railway communication; and that company possessed sufficient influence at the Spanish court and Cortes to prevent the passage of a special law authorizing said extensions and connections, and without the authority of such special law said constructions could not be attempted. Whether the foregoing explanation of an existing condition is or is not authentic, the fact remains that railway facilities in Cuba are inadequate to the needs of the people, and the traffic of the island is compelled to rely almost entirely upon uncertain and inadequate transportation by water. It is unnecessary to present argument to show that this condition ought not to continue beyond the period of necessity. In constructing a railroad in Cuba it is necessary to secure right of way over (1) property owned by private individuals, (2) property 377 owned by miunicipalities, (3) lroperty heretofore lelonging to the Spanish Crown and now held in trust by the I'nited States for the inhabitants of Cul'ba in their federate clapacity. Ordinarlily a rail'road conipany secures right of way over private property by exercising the right of elinent dollain; the privilege of so doing being secured from the sovereign powN)er possessing jurisdiction in the given territory. The President has not seen fit to direct the mlilitalry government of Cuba to exercise its authority so as to confer uponl railroad companies the privilege of employing the right of emiinent domlain in securing rig ht of wtay over private property in Cutla. This, however, dloes not prevent railroad companies from securinl sucll right of way by pIurchase or other arrangement with the owners of private property. The matters involved when consideration is given t le question of securing right of way over property belongilng to a llunicipality in Cuba are somewhat miore complicated. The property belonging to said municipalities ilmay be divided, generally, into three classes: 1. Property conveyed to the mllunicipality stubject to aI condition that it shall be devoted to a specified use-such as a site for a chllurch or public edifice. Where the terms of the conveyance to the city or other obligation preclude the exercise of discq'etion as to the use of said property by the municipality the property Inust continue to be used in the way and for the purpose contemplated in the dedication. 2. Property owned by the nmunicip'ality and devoted to certain purposes by the municipality in the exercise of powers of discretionsuch as streets, highways, parks. and pub)lic:I-'quares laid out land aliintained by the municipalities. The mlunicipality would ordinarily possess the right to determine land designate to what purposes such property should be devoted and in what manner the purpose w:as to be carried out, subject to the general right of utser possessed by the general public. 3. Property owned by the municipality free and clear of conditions or limitations, and over which the mlunicipality would ordinarily exercise all the rights of absolute ownership. The investigation of the subject under consideration will be made with reference to such municipal property as may be included in classes 2 an(l 3. In the absence of authority to exercise the right of eminent domain, a right of way over municipal property must be secured by voluntary grant of the municipality. Such grant, whether it constituted an easement or an alienation, would be an exercise of the rights of ownership. This raises the question: Do the municipalities of Cuba own the fee of their streets and highways? This question is to be 378 answered, that some of said streets and highwayls are owned by the municipality and some of them are not. The Spanish Civil Code provides as follows: ART. 339. To the pulblic domain belong: 1. Those intended for public use, as roads, canals, * * * and blridges, coastrtctedl by tfhe Stt(te. ART. 343. The property of provinces and towns is divided into property of public use an(d patrimonial property. ART. 344. Property for public use in provinces and towns comlprises the provincial and town roads, the squares, streets, fountains and public waters, the walks, and public works for general service, rlid for by the same towns or provinces. The Spanish Code defines "()Ownership" as follows: ART. 348. Ownership is the right to enjoy and dispose of a thing, without further limitations than those established by the laws. Under the provisions of the Spanish law a municipality, by following a prescribed procedure, might burden the public property owned by the town with easements or concessions, or it could alienate it entirely. On February 27, 1864, the '"general directive body in charge of the registers" decided that record is permissible of an instrument whereby a municipal council attempts to alienate, in whole or in part, the lands dedicated to public highways in a municipality. (Leyes Civiles de Espafia, Madrid, 1893; Ley Hipotecaria, title 1, par. 2, note 2.) Under the laws of Spain, the register of deeds and conveyances passes upon the title and legal effect of the instrumlent of conveyance before permitting the registration. If lie decides that the title is defective, or the conveyance unauthorized, lie refuses registration. Thereupon an action may be comlnelned all gainst him to compel registration. The actionl is in the nature of an appeal from the decision of an administrative officer, and, in a measure, resenmbles a mandamus proceeding. The case above referred to was of this character, and the determination was in favor of the right of the city to alienate its rights to the streets. Independent of the question of owning the land occupied by the streets and the appurtenant right of alienation, the municipalities of Cuba were, by Spanish law, empowered to regulate and control the use of the streets maintained tb them. A right of way over or along a street often consists of permission to use a portion of said street for railway purposes. Such permission does not ordinarily convey title; it merely permits use in a prescribed manner for a desired object. It is an exercise of the right of regulation and not the right of alienation. The Spanish laws authorized the municipalities of Cuba to grant such permits for the use of streets and highways maintained by the municipalities. In support of the foregoing statement the attention of the Secretary of War is directed to the following provisions of the Spanish laws. 379 The mlunicipal la's ill force in the island of Cuba under S)anlish 6overeignty contain the following provisions:; Am.. 69. The government and( administration of the private interests of tO\wns is under tile jurisdiction of llunicipal councils, subject to the laws, anid particularly in all thlat refers to the following sub)jects: First. EIstablishment and creation of municipal services referring to the arrangement and ornamentation of pulblic roads, comfort, andl hygiene of the neighllborhood, encouragement of its material and. moral interests, and( security of personis andl property, as follows: 1. ()pening and alignment of streets and larks and o(f all kinids of roads of communnication. 2. Paving, lighting, and sewerage. O. Water stipply. 4. Promenades and trees. 5. Bathing establishmentts, laundlries, imarket houses, and( slaughterlhouses. 6. Fairs and markets. 7. Institutions for instruction and sanitary services. 8. Municipal bullildings and in general all kinds of public works necessary for the fulfilllent of the services subject to the sp)ecial legislation oiln ublic works. 9. Surveillance and Ipolice. Second. Urban and rural Ipolice-tllat is, all tliat refers to tlhe goo(I orlcer and surveillance of the estal)lished municiipal services; care of public roads in general, and cleanliness, hygiene, and health of the town. Third. Municipal administration, which includes tlle use, care, and preservation of all estates, property, and riglts belonging to the municipality, and to the establishnlents (lependling thereon, and the deterimlination, assessment, c(ollection, investment, and(l account of all taxes andl ilp(osts necessary for thlee executionll of the municipal services. It is the oblligation o)f mllunicipal councils to monistruct and keepI inl repair mlIunicipal roads. In so far as rural roads are concernel, the lmunicii)al councils shall oblige the persons interestedi in the samtle to' lreserve and( repair them. In order to attain tlese objects, tile I)rol)er Icasures with regard to mllicilcpal roads shall be ad(opted )by the lboar(d of associates, and( with regardl to thle rural roals lby a b)oar(l of the )persolns intereste(l. The governors shall see to the fulfillment of this mnost interesting Iart (of the admlinistrationl, bv virtue of the powers grante(l them }by thle laws. Airm. 70. It is the (luty of mlunicipal councils to procure, alone or with the assistance of tIhe ilelnlbers, in thle nmanner hereafter expressedl,:in exact comnpliance, in accordance with the nmeans and( necessities of the town, of the l)urposes and services which, accordlingtl o the presentl law, are inltrusted to their action and surveillance, andl particularly the following: 1. Preservation ani(l repair of pubflic roals. 2. Rural anid city piolice. 3. Police for security. 4. Primary instruction. 5. Administration, custody, and. preservation of all estates, property, and rights of the towvn. 6. Charitable institutions. Municipal resolutions relating to fairs and mImarkets, surveillance, police and security, primary instruction, and charitable institutions require the previous approval of the governor. In immatters whichl (lo mit come undler his jurisdiction they are also obliged to assist the action of the general and local authorities in the fulfilllent of that part of the 380 laws which refers to the inhab)itants of the municipal d(istrict, or which is to l)e coiniplied with within the salme, for which puirpose they shall proceed( in accordance with the I)rescriptions of the said laws and the regulations issuedl for their exec'ution. The genleral law of public works for the island of Cu)tba provides 'as follows: Ai:lr. 6C. There are in clarge of the municipalities: First. The ccmnstruction andl preservation of local roads included ill tle plan of those whiich llhave to l)e taken c(are of with mlunicipal funds. Secon(l. The works for suppl)lying water to the tow\ns. Third. The d(rainage of lakes and unhealthy lands which are niot includled ill the fifth paragrgrapt l of article 4 nor in the third paragraph of article 5, and which affect one or Imore towns. Fourth. I'orts of mnerely local interest. Fifth. The construction and preservationl,f tile buillinris nlec.essary for 1lthe service of the Imunlicipal ad(linistration. Sixth. The works necessary to, lnake aiiml ornaiimeiit thle streets, slumares, and( boulevards of the towns. A R. 10. Th}e municipal ad(lministratioii shall, ill a(cordance with the organic laws, have charge ofFirst. The construction, repair, aiil plreservatioll of local roads paidl fRor by the municipal councils or which should lbe in charge of them, accordliig to the l)rovisions of this law. Seconal. The water supply of towns, in so far as the construction o(f tle works or the concession of the same to private- enterprises is concerned. Third. The (Irainage of lakes or unhealthy lands which are declared of )purely local interest. Fourth. The construction an(l preservation of Iports of local interest. Fifth. The, coInstruction an(l inpl)rovellent of l)uildings dlevotel to pul)lic service which depend on the colonlial (lel)artlient, and the preservation of historic and artistic inonunieints. Sixth. 11ighways and ornamentation of townis. The regulations for the execution of the general law of public works of the islald of Cutbat iiclude the following: Aarr. 91. Local roads, the supply of water, local ports, and the drainage of lakes ani( Ilarshles of mnerely municipal interest are in chlarge of the municipal councils, in accordance with article 6 of the general law all tile special laws of public works. The ilans of the works of the municipal councils shall b)e made in accordance withll the pIrovisions of the regulations for the execution of the special laws of pul)lic works. The law of railroads for the island of Cuba provides as follows: ARr. 74. When the tranmwavs are to be constructed on highroads which are exclusively in charge of one province, or traversing two or more municipalities, the concession belongs to the provincial deputation. AIT. 75. The concessions belong to the municipal council whell the tramways occupy roads which are in charge of a single mnunicipality. When they are essentially town roads, it must be preceded by the approval of the interior department. The regulations for the execution of the railroad law for the island of Cuba include the following: ART. 104. If the tramway is to occupy municipal highroads or streets within a single municipal district, in which case the municipal councils have the right to grant 381 concessions in accordance with article 74 of the law, the governor shall send the applroved plan to the proper municipal council, which, after an appraisal of said plan, shall advertise the auction and grant the concession in accordance with tlie provisions of Chapter VII of the regulations of the 6th of July for the execution of the general law of public works. ART. 105. If the tramway is to occupy roals or streets belonging to more tlha one municipality, but within one province, the p)lan 1must be seP)arately sublitted to each of the municipal districts it traverses, and in each of tlhe towns the studl of the plans on the ground and the investigations referred to in article 102 of these regulations shall be made. The governor of the province, as soon as he las gathered the proceedings of the interested municipalities, shall proceed to the approval of the complete plan in the manner provided for by article 103. ART. 108. Concessions of tramnways made by municipalities by virtue of the law of railroads and of the corresponding articles of these regulations shall be subject, in so far as applicable and not in contradiction with what is herein provide(l, to the provisions of Chapter VII of tlhe regulations for the execution of the general law of public works. 'The Secretary will doubtless notice the albsence froml these citations of provisions relating to the use of streets and highways by " railroads of general service." This is to b)e accounted for by the fact that under the Spanish system such railroads were authorized only )by special laws or charters enacted by the Cortes, wherein the rights and privileges of the chartered company were designated and conferred. It was, however, necessary to secure the assent of the municipalities to the occupation by said railroads of highways or other property belonging to said mlunicipalities. This assent antedated the passage of the law by the Cortes, and was to be secured as follows: When the promotion of a railroad in Cuba wtas contemplated, the promoters submitted a plan showing the location and plan of construction. If it appeared that said road would occupy highways, streets or other property owned or subject to regulation by a municipality or province, the plan was submitted to the municipal or provincial authorities charged with the administration of the affairs of the interested municipality or province. Examination and investigation followed, and if the municipality was satisfied it evidenced its approval by official action, and thereupon the assent of the municipality to the proposed occupation was deemed established. The plan so approved was returned, through official channels, to the authorities at Madrid, and by them considered and submitted to the Cortes, which thereupon became authorized to include the right so secured in the special law permitting the concession for the railroad. (See Law of Railroads in force in Cuba; Law of Public Works in force in Cuba.) The attention of the Secretary is directed to the fact that by Spanish law provision is made for the establishment of towns, or ' pueblos," in territory included within the limits of a municipality. These towns 882 possessed certain rights in regard to town property and affairs which could be exercised independently. The municipal code in force in Cuba under Spanish sovereignty provides as follows: ART. t6. Towns which, together with others, form a municipal district, and have their own land, water, pasture grounds, forests, or any other rights exclusively their own, shall preserve the private administration over the same. ART. S,7. For said administration they shall appoint a board, which shall b)e composed of one president and two or four members, all of whom shall be elected directly by the residents of the town, and from among them. For towns of sixty or more residents there shall be four members, and two for towns having a smaller number. When a town is laid out under the general law of Spanisfi dependencies the title to the town site is secured by the pueblo or town, the location is platted and the lots sold for the benefit of the town, the proceeds going into the town treasury. So muIch of the land as is dedicated to public use as streets becomes public property and subject to the provisions of the laws relating thereto. The laws of Spain fully recognize the right of municipalities, cities, towns, tand villages to acquire and dispose of real estate, subject to the roval regulations which were made from time to time for their gov eminent. When once acquired, neither the Crown nor its officers can take aw-ay or grant to others any of these municipal lands. (Novisimla Recopilaci6n, Lib. VII, Tit. 16;, Law 1.) The manner of granting lands to towns and municipalities and the manner in which they were allowed to rent or dispose of them were not uniform. They depended upon royal regulations, which were changed from time to time; At one period the towns and municipalities could grant or sell them and at anotler they could only lease them. These grants, sales, and leases wer e always mlade by the municipal or town authorities, with the permission of the Crown, but neither the monoarch of Spain nor the Crown officers could themselves dispose of the lands once granted to, or acquired by, the lmulnicipalities or towns. The next question considered is: Were the rights of property lossessed by the municipalities of Cuba under Spanish sovereignty abrogated by the withdrawal of Spanish sovereignty from the island? The treaty of peace (Paris, 1898) stipulated, in regard to property rights in Cuba, as follows (Art. VIII): * * *the relinquishment * * * can not in any respect impair the * * * *rights which by law belong to the peaceful possession of proplerty of all kinds of provinces, miuoicinalitie., public or private establishments, ecclesiastical or civic bodies, or any other association having legal capacity to acquire an(l possess property in the aforesaid territories. In addition to stipulating that the '"rights which belong to the peaceful possession of property" shall not be impaired, the treaty 383 pr'escribes a rule of conduct for the United States during the period of occupation. This rule is set forth in Article I as follows: And as the island (Cuba) is, ulon its evacuation l!v Spain, to ble occupied b)y the United States, the United States will, so long as such occupation shall last, assume and discharge the ol)ligations that may under international law result from) the fact of its occupation, for the plrotection of life an(d property. The treaty of peace with AMexico (May 34), 1848) contained the same provisions in regard to the protection of property rights as ar1e secured by Article VIII of the treaty of peace with Spain (Decemberl 1), 1S98). (See U. S. Stats. at Large, vol. 9, p. 9!29, Art. VIII.) Prior to the invasion of California the pueblo or village of San Francisco existed, and under the laws of Mexico was entitled to the territory, within certain presclibed limllits, known ls iptelblo lands." It had also an tayatntlamntl/,o, or town council, and an alcal(e. The tldcaltlde was the chief executive officer of the,,cbl/o, and( as such had authority to make grants of the p?,,c,1 lands. The exercise of this function was sublject to thle authority of the town. c(Ouncil and to the higher authority of the departmental goverior anlld assembly. The claiml was alnde that pteblo lands which had not 1,len granted( to individuals prior to the conquest, b)ecame a part of the lmutlic domain of the United States, and, as such, subject to the exclusive control and disposition of Congress. The supremne court of Californilt held. however, that such was not the effect of the coIl(luest, })ut tlhat the lands continued to be the public 1property of the mllulicilpality. as b)efore the war, and thaLt the latws of -Mexico 1elating to the sub)ject continue(d in force until changed,by tle legislative tautholity of the Stitte. It was further held that an atcald(,(e. grant mlla(de after the (oln(luest wats piesuined to b}e valid and was comlpetent to convey title. (Cohas v. Raisin, 3 California, 443; HIart o,. Burnlett, 15 C:tlifornia, r530; Payne & Dewey o. Treadwell, 16 California, '221; White,. MIoses, '21 (California, 34.) This doctrine is referred to and followed y\- the United States Supreme Court in tMerryman v,. Bourne, 9) \Wall., 592. That case arose in Callifornia, and as thle doctrine wa:s a rutle of p1roperty adopted' }by the supremne court of that State, it was })inding upon the Federal courts. But the United States Supremle Court followed it without criticism and imnpliedly approved it. (See also Moore o'. Steinbach, 127 U. S., 70, 81.) It is well to call a:ttention to the fact that the foregoing doctrine applies only to such property ars belonged a~bsolutely to the Inunicipality before the change in sovereignty. A nllmnicipality would be powerless to alienate or affect the title to lands or other property which passes to the United States under the terms of the treaty of peace with Spain. 384 Ill Moore?'. Steinllach (127 U. S., TO, St) the Supreme Court of the United States say: The doctrine invoked lby the defendants, that the laws of a conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by hin, does not aid their defense. The (d ctrille has no application to laws authorizing tlhe alienation of any portions of the public (domain or to officers charged( under the former government with that power. No proceedings affecting the rights of the new sovereign over public property can 1be taken except in pursuance of his authority on the subject. Ill Moore i/. Steinbach the court held that the authority and jurisdiction of the Mexican officials in California terminated on July 7, 184;, and( thereafter they '' could do nothing that would in any degree affect the right of the United States to the public property." (127 U. S., SO.) But the court further say: The cases in the supreme court of California and in this court, which recognize as valid grants of lots in the ipueblo or city of San Francisco, by alcaldes aIppointed or elected after the occupation of the country by the forces of the United States, do not militate against tllis view. Those officers were agents of the plueblo or city, and acted untder its authority in the distribution of its municipal lands. They did not assume to alienate or affect the title to lands which was in the United States. (1I. 81.) In Merryman?. Bourne. 9 Wall., 592, ~()1, the court says: The conquest of California by the arms of the tUnited States is regarded as having become complete on the 7th of July, 1846. On that day tie (;overnment of the United States succeeded to the rights and authority of tlhe Government of 5Mexico. The dominion of the latter sovereignty was then finally displaced and succeeded by that of the former. Before that time the pueblo or village of San Francisco existed, and un(ler the laws of the country was entitled to the territory within certain prescribed linmits known as pueblo lands. It had also an ayuntamiento or town council and an alcalde. The alcalde was the chief executive officer of the pueblo, and as such had authority to make grants of the pueblo lands. The exercise of tllis function was subject. to thle authority lodged in the ayuntamiento, and to the still higher authority of the departmental governor and assembly. In the case of Woodworth r. Fulton it was held by the supreme court of the State that from the time of tlhe conquest these pueblo lands, so far as they had not been granted to individuals, became a part of the public domain of the United States, and, as such, subject to the exclusive control and disposition of Congress. This doctrine was subsequently overruled in the case of Cohas ir. Raisin. It was there held that the conquest had no such effect, but that the lands continued to be the public property of the municipality, as before the war; and that the laws of Mexico relating to the subject continued in force until changed by the legislative authority of the State. It was further held that an alcalde grant made after the conquest was to be presumed valid, and was competent to convey title. These doctrines are now firmly established as a part of the rules of property of the State. In Townsend r. Greeley (.5 Wall., 326) the court say (p. 334): The treaty of Guadalupe Hidalgo does not purport to divest the pueblo existing at the site of the city of San Francisco of any rights of property or to alter the character of the interests it may have hleld in any lands tinder the former Government. It provides for the protection of the rights of the inhabitants of the ceded country to their property, and there is nothing in any of its clauses inducing the inference that any distinction was to be made with 'reference to the property claimed 385 by towns under the 'Mexican Governmlent. The subsequent legislation of Congress dloes not favor any such supposition, for it has treated the claims of such towns as entitled to the same protection as the claims of individuals, and has authorized their presentation to the board of commissioners for confirmation. (See also Grisar v. AMcDowell, 6 Wall., 363. ) The case of Palmer v. Low (9S U. S., 1), involved conflicting claims of title to a piece of ground in San Francisco, Cal. The court sustained a title derived as follows: On the 19th day of July, 1847, George Hyde was thle (lull qualified andl acting alcalde of the pueblo of San Francisco, and as suclh alcalde, on the day last mlentioned, granted the premises in controversy to George Donner, by a grant thereof duly mnade, recorded, and delivered by the alcalde. (P. 5.) In Cohas v,. Raisin (3 Cal., 443) the court held (see syllabus): Before the military occupation of California by the Army of the United States, San Francisco was a MIexican puel)lo or mnuniciphl corporation, and was invested with title to the lands withiln her b)oundaries. The occupation and sub)sequent acq(uisition of California by the United States did not suspend or (eterm/ine any rights or interest of San Francisco in such lands. The l)ueblo retained (luring the war all its rights to nlunicipal lands which had been conferred upon it lprevious to the war. The right to alienate is incident to that of ownershil). The )uelbl)lo lad the same riglht to dlispose of its Jproperty (luring the war as a natural personl. In Welch i,. Sullivan (8 Cal., 16(5) the court held that in CalifolrniaThe pueblos, ulInder the laws of Spain aniil Mexico, had the right to (lisI)ose of certain lands within their limits to defray inninicil)al expenses. The lnunicilt)l law remlllaine(l uIllchallge( after tile cm(luest until 18,50, andl grants of pueblo lands 1y Amlerican alcaldtes -were (rrants by the pueblo of its own property, which it hlad a right to c(o)nfer. In the body of the op)inion the coiurt say (197): It is a misnlloler to call tlese titles Amlerican al(alie grallts. They were thle grants of the pueblo of its own property, which it ha(l the right to transfer by virtue of the mullicipal law whlich was continued in force by the new sovereign until 1850. (See also Dewey v. Lamlbier, 7 Cal., 347; Hart r,. B1urnett, 15 Cal., 530; Payne and( Dewey v. Treadwell, 16 Cal., 232; White. AMoses, 21 Cal., 34.) In the instance of Porto Rico the executive branch of this Government recognized that the transfer of sovereignty did not dispossess the municipalities of the island of the rights similar in character to those now under consideration. In order to prevent the imlprovident exercise of such rights, the President issued the following order (G. 0. 188, A. G. 0. 1898): EXECUTIVE MANSION, TTl(tshingtonl, D)ecemlber 22, 1898. Until otherwise ordered, no grants or concessions of public or corporate rights or franchises for the construction of public or quasi-put)lic works, such as railroads, tramways, telegraph and telephone lines, etc., shall be niade by any municipal or other local governmental authority or body in Porto Rico except upon the approval of the mnajor-general commanding the mnilitary forces of the United States in Porto Rico, who shall, before approving anyl such grant or concession, be so especially authorized by the Secretary of war. AWILLIAMI MCKINLEY. 1394-03 25 386 The attention of the Secretary is again directed to the provision of Article I of the treaty of peace with Spain (Paris, 1898), as follows: And as the island (Cuba) is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation for the protection of life and property. Since the United States voluntarily consented to be bound by them, it becomes necessary to ascertain what obligations relating to the protection of property and property rights are imposed by international law upon a military force maintaining military occupation of territory. The governmental forces of the United States (military and civil) now in Cuba are engaged in maintaining an occupation of the island and not a conquest. Occupationi is the temporary retention of territory, while conqtuest is the definite appropriation of it. Under the modern law of nations an occupying power is, as stated by Mr. Hall, "forbidden, as a general rule, to vary or to suspend laws affecting property or private personal relations." (Hall on International Law, 4th ed., chap. 4, par. 155.) Halleck states the law as follows: As military occupation produces no effect (except in special cases, and in the application of the severe right of war, by imposing military contributions and confiscations) upon private property, it follows, as a necessary consequence, that the ownership of such property may be changed during such occupation by one belligerent of the territory of the other precisely the same as though war did not exist. The right to alienate is incident to the right of ownership, and unless the ownership be restricted or qualified by the victor, the right of alienation continues the same during his military possession of the territory in which it is situate as it was prior to his taking the possession. A municipality or corporation has the same right as a natural person to dispose of its property during the war, and all such transfers are, prima facie, as valid as if made in time of peace. If forbidden by the conqueror, the prohibition is an exception to the general rule of public law and must be clearly established. (Halleck's Int. Law, 3d ed., chap. 33, par. 12, I). 448.) The same author also says: The conqueror who acquires a province or town from the enemy acquires thereby the same rights which were possessed by the state from which it is taken. If it formed a constituent part of the hostile state and was fully and completely under its dominion, it passes into the power of the conqueror upon the same footing. * * * The case, however, is different where the enemy possessed only a quasi sovereignty or limited political rights over the conquered province or town. The conqueror acquires no other rights than such as belonged to the State against which he has taken up arms. "War," says Vattel, "authorizes him to possess himself of what belongs to his enemy. If he deprives that enemy of the sovereignty of a town or province, he acquires it, such as it is, with all its limitations and modifications. Accordingly, care is usually taken to stipulate * * * that the towns and countries ceded shall retain all their liberties, privileges, and immunities." (Halleck's Int. Law, 3d ed., chap. 34, sec. 2.) This brings us to the question: Is the legislation contained in the "Act making appropriation for the support of the Regular and Vol 387 unteer Army for the fiscal year ending June 30, 1900," known as the " Foraker amendment," to be construed as a prohibition upon the exercise by a municipality in Cuba of the ordinary rights of ownership respecting property belonging to it? That is to say, Does the Foraker amendment constitute a "clearly established'" "exception to the general rule of public law," whereby the exercise of private and personal rights of propeity is "forbidden by the con(lueror?" The Foraker amendment reads as follows: SEC. 2. That no property, franchises, or concessions of any kind whatever shall be granted by the United States, or by any military or other authority whatever, in the island of Cuba during the occupation thereof by the United States. If this language is interpreted so as to prevent the municipalities of Cuba from determining how their property is to be used or in what manner the public right of user is to b}e enjoyed, it also prevents the municipalities from entering into agreements respecting the administration of other municipal affairs, such as cleaning and lighting the streets, employing imunicipal officers and agents, constructing public works, or making municipal improvements; for all such agreements create and grant certain rights which are property. Indeed. such interpretation would prevent a private individual, as well as a nlunicipality, from executing a grant of conveyance of property, for if so interpreted, "property of any kind whatever" would include private property, and "any " * other authority whatever" would include the authority of individuals. I believe this legislation constitutes a voluntary renouncement:by the United States of the fruits of con(luest in Cuba. It restricted the United States to the recent rule of modern times regarding military occupancy and precluded the exercise of the rights accorded by the ancient rule to a victor in war who had conlpleted a conquest. lBy the Teller resolution the United States disclaimed an intention to assume permanent sovereign rights in Cuba, and by the Foraker amendment the United States surrendered the rights of a conqueror and voluntarily limited its authority to that of a temporary occupant under the modern laws of nations. Historically we know that one purpose of the Foraker amendment was to preserve the species of property therein referred to until stuch time as the rights therein and thereto could be exercised by governmental agencies selected by the inhabitants of Cuba. That purpose is accomplished as to municipal rights and property in Cuba. In considering what effect the Foraker amendment has on the exercise of the powers possessed by municipalities in Cuba, it must be borne in mind that, as ordinarily constituted, municipal corporations have a dual character, the one governmental, legislative, or public; the other proprietary or private. In the first or public capacity a responsibility exists in the performance of acts for the public benefit, and in this respect they are merely a part of the machinery of govern 388 ment, an instrument of the sovereignty creating them, and the authority of the sovereignty over them remains supreme. In their proprietary or private character their powers are not conferred for purposes of state, but for the private advantage of the particular corporation as a distinct legal personality. As was said by Folger, J., in 62 N. Y., 160: There are two kinds of duties which are imposed upon a municipal corporation. One is of that kind which arises from the grant of a special power in the exercise of which the municipality acts as a legal individual; the other is of that kind which arises or is implied fr3m the use of political rights under the general law, in the exercise of which it is sovereign. The former power is private and is used for private purposes; the latter is public and is used for public purposes. The former is not held by the municipality as one of the political divisions of the State; the latter is. T ihe N ew York court also say (3 Hill, 531): The distinction is quite clear and well settled and thle process of separation practicable. To this end regarid shoul(d e had, not so mIuch to the nature and character of thle various powers conferred, as to the object and purpose of the legislature in conferring theml. If granted( for lpublic purposes exclusively, they belong to the corporate body in its public, political, or -municipal character; but if the grant was for purposes of private advantage andi enolumient. though the public may derive a commllonl benefit therefrom, the corporation qtioad h/oc is to be regardled as a p)rivate company. It is certainly proper to hold that the restrictions created by the Foraker amendment operate to prevent the grant of property, franchises, etc., created and conferred by an exercise of sovereign or political powers which the municipality is permitted to exercise for public purposes. It appears equally clear to the writer that said restrictions do not operate to prohibit grants made by an exercise of powers ailpurtenant to private and personal rights possessed by municipalities as legal personalities any more than said restrictions operate to prevent grants by individuals, firms, associations, and private corporations. The right under consideration is aL property right, personal to the municipalities and appurtenant to the proprietary title, and as such protected by the treaty of peace and the laws of war and nations. To hold that said legislation prevents the municipalities of Cuba from exercising the common, ordinary rights of ownership, over property which belongs to them, is to convert a beneficent measure into an instrument of oppression. If the foregoing compendium correctly sets forth the law and the facts, it follows: 1. The municipalities of Cuba now possess the same rights of property as they possessed under Spanish sovereignty. 2. Such property as a municipality could completely alienate under Spanish sovereignty is now subject to such disposition by the municipality. 389 3. Such property as a municipality under Spanish sovereignty could charge with an easement amounting to a servitude in favor of a private person or concern is now subject to a like action. 4. That, as now constituted and administered, the municipalities of Cuba are permitted to exercise the ordinary rights of ownership over property unto thenm belonging. There remains to be considered the question of the procedure to be followed by the municipalities in exercising said rights. The general provisions of the Spanish law regulating the conveyance of real estate in Cuba between private parties and concerns have been continued in force under the military government of the island. Apparently no reason exists why the provisions of the Spanish law regulating conveyances of real estate by municipalities in Cuba should not also be continued in force. The absence of objection to this course is the more apparent when it is considered that said provisions constitute a part of the law of municipalities in CIuba under which the continued existence of said municipalities and the administration of their affairs is maintained in the island. Certain provisions of these laws or regulations have ceased to be of force and effect in Cuba, to wit, the requirements that the exercise of rights of ownership by nunicipalities must receive the approval of designated officials acting as the representatives in Cuba of the Crown of Spain. Under Spanish dominion a municipality might possess the ownership, but the right to encumber or convey, which is ordinarily an inherent attribute of ownership, was curtailed and made dependent upon the will of the Crown. The authority to exercise this royal discretion was conferred by the Crown upon certain Crown officials in Cuba. Upon the sovereignty of Spain being withdrawn from the island of Cuba, this authority ceased, and this particular limitation upon the right of the owner to encumber or convey departed with the deposed sovereignty. The limitation resulted from the continued authority of the Spanish Crown to impose it, and when that authority ceased, the limitation ceased. The authority in such matters theretofore exercised by the Spanish Crown officials was derived from the Crown, and exercised by them as a royal prerogative. Therefore said authority did not pass from said Spanish officials to the officers of the military government of civil affairs under the American occupation. In his opinion as to the construction of sewers and pavements in Habana (Dady & Co.) delivered to the Secretary of War July 10, 1899, the Attorney-General says: (22 Op. 527, 528.) By well-settled law, upon the cession of territory by one nation to another, either following a conquest or otherwise, * * those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon transfer of sovereignty. Political and prerogative rights are not transferred to the succeeding nation. * * * The authority of the power of the Crown and of 390 the Crown officers in such instances dlid not pass to the officers of the United States, because the royal prerogatives and political powers of one government do not pass in unchanged form to the new sovereign, but terminate upon the execution of the treaty of cession, or are supplanted by such laws and rules as the treaty or the legislature of the new sovereignty may provide. In Mumford v. Wardwell (6 Wall., 435) the United States Supreme Court say: Mexican rule came to an end il that department on the 7th of July, 1846, when the government of tile same passed into the control of our military authorities. Municipal authority also was exercised for a time by subordinate officers appointed )by our military commanlders. Such commiand(er was called military governor, and for a tine he claimed to exercise the same civil power as that previously vested in tile Mexican governor of the del)artlnent. By virtue of that supposed authority, (Ten. S. N. Kearney, March 10, 1847, as military governor of the Territory, granted to tile town of San Francisco all the right, title, and( interest of the United States to the beach and water lots on the east front of the town included between certain described points, excepting such lots as might be selected for Government use. * *- * * * * *% But the power to grant lands or confirm titles was never vested in our military governors, and it follows as a necessary consequence that the grant as originally made was voi( and of no effect. Nothing lpassel to the town by the grant, and, of course, the doings of the alcalde in selling the lot in question was a mere nullity. In Pollard's Lessee?r. Hagan (3 How., 225) the Supreme Court of the United States say: It can not be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives, and lmuch less can it be admitted that they have capacity to receive or power to exercise them. While the authority of the officers of the Crown of Spain to direct and control the action of municipalities in Cuba in these matters has ceased, it does not follow that the local officials of said municipalities are without restraint in exercising the powers of their several offices. This restraint does not arise by virtue of provisions of the Spanish law. nor from the fact that Spanish officers were permitted by the reigning monarch to exercise his sovereign prerogative to impose it. The authority of the existing government of Cuba to impose restraints of this character is derived from the laws of war and nations applicable to the conditions existing in Cuba, and the exercise of the authority to impose restraints upon the power of local municipal officials in such matters is justified by the character of said military government, the relation it sustains to all of its inferior branches, the obligations to the inhabitants of the island assumed by the United States, and the necessity of imposing such restraints in order to accomplish the declared purposes for which the occupation was established. The extent of the authority of the military government in Cuba over the affairs of municipalities in the island is set forth by AttorneyGeneral Griggs, as follows (see letter to Secretary of War, July 10, 1899, 22 Op., 528): Cuba, however, is now under the temporary dominion of the United States, which is exercising there, under the law of belligerent right, all the powers of municipal 391 government. In the exercise of these powers tie proper authorities of the United States may change or modify either the form or the constituents of the municipal establishments; may, in place of the system and regulations that formerly prevailed, substitute new and different ones. Upon this line the same authorities exercising sovereignty over the island have the power to provide the methods, terms, and conditions under which municipal improvements which relate entirely to property belonging to the municipality or held by it for public use may be carried on. The old provisions of the Spanish law may be adopted, so far as applicable, or they may be entirely dispensed with, and a new system set up in their place. Upon the question of procedure the conclusion reached by the writer is that the municipalities of Cuba may encumller or convey the land and other property owned by them by pursuing the procedure prescribed by the Spanish law relative thereto, saving and excepting the provisions requiring the assent and approval of the Crown of Spain or its officers, lbut sulject to such restraints and requirements as may be imposed by the superior authorities of the military government o' the island. The foregoing report was referred to the military governor of Cub "for considerationl" without action thereon by the Secretary of War. REPORT ON THE DRAFT OF A PROPOSED ORDER OF THE MILITARY GOVERNMENT AUTHORIZING THE ORGANIZATION OF RAILROAD COMPANIES IN CUBA AND THE CONSTRUCTION, MAINTENANCE, AND OPERATION OF RAILROADS IN THAT ISLAND. [Submitted February 20, 1901. Case No. 2433, )ivision of Insular Aflairs, War )Deprtment.] SIR: I have the honor to acknowledge the receipt of your verbal instruction to examine and report on the proposed draft of an order of the military government of Cuba of the character indicated 1by above title. The draft of order which you handed me is herewith returned. I understood you wished the report thereon to review said order, not only as a proposed law for Cuba, but also as though it were a proposed law for one of the States of the Union. The desired object of the investigation is to learn in what way and to what extent, if at all, said order would enlarge the powers of the public over private property and rights in matters relating to the construction, maintenance, and operation of railroads; what changes in procedure are contemplated, and to test the provisions of said order by comparison with the laws of the several States of the Union enacted for similar purposes. In pursuance of said general plan, I have the honor to report as follows: I. The proposed order does not provide a method for the organization of incorporation of railroad companies, nor require compliance with 392 the existing Spanish laws in regard thereto. I suggest that the order be amended so as to set forth complete authority and procedure for such incorporation, or that a general clause be inserted substantially as follows: Railroad companies are hereby authorized to. become incorporated in Cuba by following the procedure now established therefor by law, except as such procedure is modified by this order. Such incorporation and the shareholders therein shall be subject to the obligations and invested with the rights created or conferred by said laws and this order, and to the regulations and restrictions therein provided. II. Section II of proposed order is as follows: The capital stock of a company of this class shall not be less than $6,000, United States money, for each kilometer of its main line. The provisions of the Spanish law which this section would supplant are those of article 185, ninth section, commercial code, title "Railroad and other public work companies," as follows: The capital stock of the company, together with the subsidy, should there be any, shall represent at least half the amount of the total estimate of the work. The companies can not establish themselves before half of the capital stock has been subscribed to and 25 per cent thereof las been realized. (War Dept. Trans., p. 55.) The probable purpose of said section II of the proposed order is to prevent weak or speculative companies from invading the field and subjective legitimate concerns to harassing competition for location and business. It naturally suggests the advisability of placing a limit at the other end of the stock issue as a possible means of preventing the stock from being watered. Another such means would be a requirement that the face value of stock should be paid in full upon being issued or the company authorized to begin business. Under Spanish dominion the danger of competition from speculative companies was slight because of the difficulty in securing a concession. The distinguishing feature of the order, when compared with the Spanish law of railroads, is that it enables a railroad company to build a road and operate it without a '' concession." Under Spanish law it is not necessary to pay the full value of the stock before issued; and payment can be made in property duly appraised. The attention of the Secretary is directed to the following provisions of the Spanish commercial code (War Dept. translation): ART. 151. The articles of incorporation must include: The corporation capital, stating the value at which property, not cash, contributed has been appraised, or the basis on which the appraisement is to be made. * * * The period or periods within which the portion of the capital not subscribed at the time of incorporation is to be contributed, otherwise stating the person or persons authorized to determine the time and manner in which the assessments are to be made. 393 ART. 164. In all certificates of shares, either payable to order or to bearer, there shall always be entered the sum which has been paid on account of its nominal value or that they are fully paid. * * * All shares shall be payable to order until 50 per cent of their nominal value has been paid il. * * * (See also articles 170 and 171.) ART. 165. New series of stock can not be issued before the payment of the series previously issued has been made. Any agreement to the contrary included in the articles of copartnership or of corporation, in the by-laws or regulations, or any resolution adopted at a general meeting of members in opposition to this precept shall be null and of no value. ART. 172. When the capital or the part thereof which a partner is to contribute consists of property the appraisement thereof shall be made in the manner prescribed in the articles of association, and should there be no special agreement on the matter the appraisement shall be made by experts selected by both parties and according to current prices, subsequent increases or reductions therein being for the account of the association. In case of disagreement between the experts a third one shall be designated, selected by lot from among persons of his class who appear as paying the highest taxes in the locality, in order that he may adjust sai( disagreement. Section IV of the proposed order provides as follows: IV. When a railroad company has been duly recorded report thereof shall be made by the registrar to the secretary of public works, and the report shall be accompanied by a copy of the articles of incorporation signed by the president. Thereupon the company shall become invested with all the rights conferred by law on incorporated companies. * * * The order omits to subject the companies to the obligations imposed by law on incorporated companies. Paragraph I, Section IV, is as follows: 1. To make freely, by its engineers, agents, or any employees, searches and examinations in public records of any kind for the purpose of collecting the information and documents which may be needed for its corporate purposes, and to enter on any lands and waters for the purpose of determining the line of the railroad, and to make plans and designs and to perform other works which may be proper for the accomplishmeat of its purpose. The right to examine public records is so universally considered in the United States a public right possessed by all in common that its exercise passes without question. But in Cuba an obstacle is encountered; many records of a kind considered "public" in the United States, made under Spanish authority in the island, are, or at least were, private property. If the provision "To make freely" in the first line of the above-quoted paragraph is intended to enable the company to examine these records without paying the owner for the privilege, it amounts to a confiscation of what has been and still is considered, locally, private property. Doubtless many of these records, perhaps all of them, should belong to the public, and the private titles now asserted thereto, abrogated. Ample justification and authority probably exists for such action; but the experience of this department in depriving former Spanish officeholders of the right to administer 394 their offices admonishes us that such course would not be acquiesced in without protest. If the object of said provision is to secure access to said records for the purpose of securing necessary information, that object may be attained without raising the question above suggested by amending the provision so as to read, "To make freely * * * upon tender of the legal fees therefor." * * * The provision allowing the company "to enter on any lands and waters for the purpose of determining the line of the railroad, and to make plans and designs and to perform other works which may be proper for the accomplishment of its purpose," is understood to relate to preliminary surveys and examinations necessary to determine the definite location. In the United States this right is secured to railroad companies either by statute, by common consent, or by the authority given by statute to licensed surveyors. Such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line. * * * (Clh. 16, sec. 81, Title, Railroads, Coinp. Stats. of Nebr.) In Cuba, under Spanish dominion, such authority must be secured by the action of various officials, boards, and tribunals, and the necessity of securing this special action constituted one of the mnany impediments to promoting public improvements by private enterprise. The provision "and to perform other works which may be proper for the accomplishment of its purpose," if appearing in a statute of one of the States of the Union, would be liable to be construed as giving a broader authority than is required for preliminary purposes; in fact, as dispensing with the necessity for condemnation proceedings and relegating the proprietor to his remedy at law for a uan1t'um riereidt. I think this provision should be omitted, and that the remaining provisions of the paragraph are sufficient for the legitimate purposes of the company. Paragraph 3, Section IV, provides as follows: 3. To acquire by expropriatiom such real estate and other property as may be necessary for the construction, maintenance, and operation of its railway, but property so acquired shall not be used for any other purpose. In the United States the authority of railroad companies to expropriate property is confined to real estate. The provisions of the paragraph quoted give authority to expropriate the horses and mules, building materials, etc., used in constructing the roads, and forever afterwards authorizes the supply department of the roads to expropriate coal, iron, oil, and anything else needed to maintain and operate the line. Abuse of said power would be inevitable. Paragraph 6, Section IV, is as follows: To construct, acquire, and operate telegraph and telephone lines along the lines of its railroad. 395 In the United States the railroad companies do not construct, acquire, and operate telephone lines, certainly not off of their right of way. It is not necessary to recite the arguments pro and con on the proposition involved. If the right is given them in Cuba, its exercise should be confined to the right of way of the road. Paragraph 7, Section IV, is as follows: To conduct water, and to build roads to and froml the railroads. I am unable to report that any of the general statutes of any of the States of the Union intended to authorize railroad companies to construct and operate railroads confer authority on said companies '"to conduct water and to build roads to and from the railroads." There may be special statutes conferring such powers on individual companies, but such powers are not general. There mnay be reasons why these powers are essential to railroads in Cuba. but, if so, they are unknown to the writer. As set forth in said paragraph, the authority enables the company to construct waterworks and wagon roads, which being included in the law of railroads, would be considered as a part of said railway system, and enable the conpany to impose charges: that is, operate the waterworks for pay and chlarge tolls on the roads. By thus including telephone lines, waterworks, and toll roads in the railroad system, lland authorizing a railroad comlpany to "expropriate real estate and other property," a railroad company in Cuba would be able to acquire the franchise and property of existing or future companies owning telephone lines, waterworks, or toll roads by condemnation proceedings. The existence of such authority would be a constant menace. I suggest the amlendment of Section IV so Ias to make a new pIaragraph of the concluding sentence of paragraph 9 and the insertion of the italicized words, making it read as follows: 10. In all cases trising fr'om7 t1he j)rovisins of this section (IT') the comlpany shall indemnify the owners or parties i, intcrerst for (1) the value of the property acquired by expropriation and (2) for the damages that may be sustained. The provisions of the proposed order regarding the expropriation of private property are not incompatible with tlhe ideas and practices prevailing in a majority of the States of the Union, but said provisions constitute a departure from established principles of Spanish law. The Spanish law of January 10, 1879, providing forcible expropriation for a work of public utility, contains the following: ART. 3. The expropriation referred to in article 1 can not take place without the following requisites being first complied with: First. A declaration of public utility. Second. A declaration to the effect that all or a part of the real property which it is desired to expropriate is indispensably necessary for the execution thereof. Third. An appraisal of what is to be sold or assigned. Fourth. Payment of the price which represents the indemnity for what is forcibly alienated or ceded. 396 The declaring a work to be one of public utility was accomplished (in general) by the enactment of a law (art. 10, law of 1879). As to railroads in Cuba, such declaration was accomplished by the legislative act of the Cortes adopting a general system of railroads for the island and declaring the component parts thereof to be works of public utility (law of November 23, 1877). Such roads as were not included in said system were declared works of public utility by the law which authorized the concession under which they exercised the right of expropriation. The proposed order dispenses with this declaration as a condition precedent to the exercise of the right of eminent domain and confers said right upon any duly incorporated and registered railroad company (par. 3, Sec. IV), limiting its exercise to the property necessary for the construction, maintenance, and operation of the road. (Sec. XXIII.) The only restriction on the right of a registered company to build a road is that contained in Section XXI, which is as follows: XXI. The secretary of public works mnay reject any plan which he may consider prejudicial to the public convenience or on the ground that the proposed line, when for public service, is not of public utility. Against such decision an appeal may be taken as provided in Article X. Under Spanish law a railroad company was not permitted to decide for itself what and how much real property was necessary for its legitimate purposes and to expropriate such or as much real property as it desired. Hence the provisions of the second subdivision of said article 3, requiring as a condition precedent to expropriationa declaration to the effect that all or a part of the real property which it was desired to expropriate is indispensably necessary for the execution thereof. (Law of January 10, 1879.) Authority for the determination of the questions involved and to make the declaration was conferred upon the administration by the following provision of law: ART. 14. When a work has been declared of public utility, it is the duty of the administration to decide whether, for the execution of said work, all or part of the real property is necessary. (Law of January 10, 1879.) In the United States, when authority to take property for public use has been duly conferred, it rests with the grantee to determine whether it shall be exercised, and when and to what extent it shall be exercised, provided, of course, that the power is not exceeded or abused. With us these questions are political in their nature and not judicial. The courts can not inquire into the motives which actuate the authorities or into the propriety of making the particular improvements. The same rule applies to individuals and corporations vested with the power of eminent domain and acting fron considerations of private emolument. (Dunham v. Hyde Park, 75 Ill., 371; Gates v. 397 Boston, etc., R. R. Co., 53 Conn., 333; O'Hare v. Chi., etc., R. R. Co., 139 111., 151; St. Paul v. Nickl, 42 Minn., 262; In re Elevated R. R. Co., 113 N. Y., 275; Penn. R. R. Co. v. Diekman, 128 Pa. St., 509; Colorado R. R. Co. v. U. P. R. R. Co., 41 Fed. Rep., 293; Douglass v. Bvrnes, 59 Fed. Rep., 29.) The proposed order limits the amount of land which may be expropriated as follows: XXI1. The land required for a railway shall be considered to be a strip of 20 meters width, except in places where greater width shall be required for buildings, embankments, or cuttings; and such additional lands as may be required for burrow pits and quarries, for the diversion of streams and roads, the draining of marshy lands, for dikes and other works to protect the track from floods and freshets, as well as for yards, shops, wharves, platforms, storehouses, turnouts, switches, or for any other proper and useful purpose of a railway. The proposed order provides that a railroad company may enter upon real property, dispossess the proprietor, and devote the property to the use of the road jprior to the ascertainment of the amount of indelnity and the payment thereof. This is not permitted by the laws of Spain. Railroad companies about to construct a line of road frequently desire to enter upon the construction without awaiting the final outcome of the condemnation proceedings. A means for so doing is commnonly provided by the States of the Union. The proposed order lmakes provision therefor in sections 31, 32, 33. In the opinion of the writer, the authority granted by these sections is too broad. The sections are set out in full, and attention directed to the words in italics: XXXI. At any time, before or after instituting proceedings for expropriation, or wlile an appeal is pending, the company may apply to the judge of first instance of the district in which the property sought to be acquired is situated, praying that possession thereof le given to it, which the judge shall grant, as a matter of course, if the case be one included in the provisions of this order, provided the company shall give security, to the satisfaction of the judge, to answer to the awards which the company may have to pay. Plossession so given shall be definite (tad irrevocable, and the company may forthwith proced with its works. And in case the company slhall not hare given such security before instituting proceedings for the ( lppointment of a. commissioner, any party interested il the property sought to be acquired vmy petition that.such security shall be deposited by the company. In like manner possession shall be given to the company whenever it shall pay or deposit the amounts of the awards fixed, respectively, by the judge or by the audiencia. XXXII. The judge shall refuse to appoint a commissioner or give possession of property in any case not included within and authorized by the provisions of this order. Against such refusal the company may appeal, in the form and manner provided in article XXIX. The company may petition, notwithstanding such refusal, that provisional possession be given to it, and the judge shall grant such petition upon the deposit by the company of such security as he may deem sufficient. Such possession shall be given forthwith, and the company may proceed with such works as it may deem proper in the premises, without prejudice to the final decision of the audiencia. 398 XXXIII. When an award has been made, though the party in whose favor it is made be not named, or when definite possession has been given, before, during, or after a proceeding for expropriation, such possession shall not be annulled for any reason nor at any time. The decree of definite possession shall be sufficient title for inscription of the property or interest acquired, in the name of the company, in the proper registry of property. 'The question arises: Is it advisable to confer upon railroad companies in Cuba the right to secure possession of private property and devote the same to the uses of the railroad prior to an assessment, award, and deposit of damages and judicial decree of expropriation, which said possession is to be irrevocable and sufficient in itself to constitute title? In this connection the attention of the Secretary is directed to the following extracts from the several constitutions adopted by Spain during the past century: Constitution of June 18, 1837: ART. 10. The penalty of confiscation of property shall never be imposed and no Spaniard shall be deprived of his property except for a duly proved cause of public benefit, after the proper 'indemnity. Constitution of May 23, 1845: ART. 10. The penalty of confiscation of property shall never be imposed and no Spaniard shall be deprived of his property except for a proved cause of public benefit, after the proper indemnity. Constitution of June 1, 1869: ART. 13. No one can be deprived, either temporarily or permanently, of his property and rights, nor be disturbed in the possession thereof, except by virtue of a judicial decree. Public officials who, under any pretext whatsoever, should violate this provision, shall be personally liable for the injury caused. Cases of fire or flood or other similar urgent cases are excepted in which by the occupation a danger to the owner or possessor may be avoided, or the evil which may be feared or which may have occurred may be avoided or lessened. Constitution of June 30, 1876: ART. 10. The penalty of confiscation of property shall never be imposed, and no one shall be deprived of his property except by a competent authority and for a proved cause of public benefit, always after the proper indemnity. Should this requisite not have been complied with, the judges shall protect, and, in a proper case, shall restore possession to the person dispoessesd. The exercise of this authority so recognized in these constitutions was regulated by law. The law of July 17, 1836, provided as follows: ART. 1. The right of ownership being inviolate, no private individual, corporation, or establishment of any kind whatsoei r can be forced to cede or assign what may belong to it for works of public interest without the following requisites first being complied with: First. A formal declaration that the work planned is of public benefit and the proper permission to carry it out. Second. A declaration that it is indispensable that all or a part of an estate be ceded or alienated for the execution of the work of public utility. Third. An appraisal of what is to be ceded or alienated. Fourth. The payment of the price of the indemnity. * * * * *X * *x 399 ART. 8. The entire appraised value shall be paid the person interested before his dispossession, or shall be deposited if there should be a claim of a third person by reason of an emphyteusis, easement, mortgage, lease, or any other charge on the property, the declaration of the respective rights being left to the ordinary courts. In addition, the person interested shall be paid 3 per cent of the entire appraised price. This law was superseded by the law of January 10, 1879, wherein it was provided: ART. 3. The condemnation referred to in article 1 can not take place until the requisites following have been complied with: * * * *- * * * Fourth. The payment of the price which represents the indemnity for what is forcibly alienated or ceded. ART. 4. Any person deprived of his property without the requisites mentioned in the foregoing article being complied with may institute sumlnary proceedings to retain or recover possession in order that the judge mlnay protect, and, in a proper case, restore possession to the person improperly expropriated. The civil code in force in Cuba under Spanish sovereignty provided as follows: ART. 349. No one shall be deprived of his property except by competent authority and with sufficient cause of public utility, atlrtys after proper indemnity. If this requisite has not been fulfilled, the judges shall protect, and, in a proper case, replace the condemned party in possession. I find, however, that the law of January 10, 1879, contains the following: ART. 29. The administration, or its legal representative, nmay, if advisable, occupy at any time real property that may have been the subject of an appraisal, on the deposit of an amount equal to that fixed in the statement of the expert of the owner, for which purpose the governor of the province shall issue the proper orders. The owner has the right to receive 4 per cent per annum on the amount stated for the period of time that elapses until lie receives the amount of the expropriation definitely determined. The proposed order increases the authority of the companies and enables a railroad company to dispossess the owner prior to the deposit of the amount of the ascertained indemnity. The rule on this subject is not uniform in the United States. The constitutions of many of the States provide either that compensation shall be first made in all cases or that it shall be first made when the taking is by individuals or corporations or for specified purposes. In some instances the constitutions provide that compensation shall be first made or deposited, or secured in such manner as shall be provided by law. In all of the States the constitution, as now interpreted, requires that compensation must be made, and in most of them is silent as to when compensation shall be made. The decisions of the courts are no more uniform than the provisions of the constitutions of the several States. At first it was held that the taking contemplated by the constitution was not accomplished until 400 the title passed, and therefore occupancy did not create the right to compensation. Subsequently this theory was abandoned, and the doctrine established that when a person is ousted from possession under a claim of right his property is taken from him. In most of our States it is held that the making of compensation need not precede an entry upon the property, provided some definite provision is made whereby the owner will certainly obtain compensation without resorting to the ordinary means of collection. The Supreme Court of the United States hold such course to comply with the requirement of the Federal Constitution. In Cherokee Nation?v. Kansas Railway Company (135 U. S., 659), the court say: The Constitution declares that private property shall not be taken "for public use without just compensation." It does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed. Whether a particular provision be sufficient to secure the compensation to which, under the Constitution, he is entitled is sometimes a question of difficulty. In those States where the constitution contains no specific provision as to the time or manner of compensation, the cases may be divided into two principal classes: First, those holding that the compensation must be paid before entry; second, those which hold that it may be ascertained and paid after entry. The cases in the second class are to be again divided into two subordinate classes; first, those which hold that no security is necessary; second, those that hold some security is necessary. The first of these is to be again divided into those which make a distinction in respect of public corporations and those which do not. The great diversity and confusion in the decisions show the lack of any guide when it is once held that compensation need not first be made. The proposed order provides a summary means of securing an appraisal and award, and limits to a few days the time in which the courts must act thereon. It appears to the writer that this is sufficient for the actual necessities of the railroad companies. Extraordinary occasions may arise where that procedure is inadequate to prevent annoying delay; but it is dangerous for the lawmaking power to provide for exceptional cases by a grant of power which may be abused in ordinary cases; or to violate a fundamental principle in order to preclude the possibility of individual annoyance arising from delay in court proceedings. The proposed order provides that the railroad company may expropriate streets, parks, and other property belonging to cities, towns, and other municipal subdivisions of the island by the proceeding followed in expropriating private property. (Sec. XXVII.) Attention is directed to the fact that the general grant of power set 401 forth in said proposed order does not authorize railroad companies to occupy streets, parks, etc., belonging to municipalities, nor does it authorize the municipal authorities to deal with the companies in regard thereto. Such authority as the company or municipal authorities would have must be derived by inference from the provision made for fixing the amount of damages. In the absence of a specific grant a question might arise as to the authority to occupy or to divest title of property belonging to a municipality, even when a procedure is provided. (Penn. I. R. Co. v. Phil. Belt, etc., Co., 10 Pa. Co. Ct., 625.) In the United States, before a railroad can lawfully occupy a street, it must have authority to do so from the legislature or from a municipality having power to grant it. A railroad can not occupy a street under its general authority to make a location; such right must be expressly granted or necessarily implied. Municipalities can not grant the use of streets for railroad purposes without legislative authority, and the prevailing doctrine is that such authority is not derived from the general power to control and regulate the streets. (55 Ala., 413; 9 Bush (Ky.), 127; 80 Ga., 793; 56 N. J. Eq., 259.) The proposed order also provides that railroad collpanies mlay institute condemnation proceedings against the public property, title to which is now held by the United States in trust for the people of Cuba. I understand the position taken by the War Department on the questions involved to be as follows: 1. The President, as a civil officer, can not dispose of or pass title to property the proprietary title to which is held by the United States, either for the people of this Union or in trust for another, unless he is authorized so to do by act of Congress. 2. The President, as Commander in Chief of the Army and Navy of the United States, and therefore the head of the military governmzent of civil affairs in Cuba, may dispose of and pass title to public property in Cuba if he considers such action necessary for the accomplishment of the purposes set forth in the instructions given him by Congress in the joint resolution of Congress adopted April 20, 1898 (30 U. S. Stats., p. 738), being authorized to exercise the powers of a belligerent commander until said orders, to accomplish which the war powers of the nation were called into action, have been carried out. 3. That said authority to dispose of public property or pass title thereto will not be exercised as to public property in Cuba. 4. That when the welfare of the inhabitants of Cuba, or the exigencies of the public service require the use and occupation of public property by private concerns or quasi-public improvements, such use and occupation may be authorized by revocable license, terminable at the discretion of the public authorities. 5. The authority of the Secretary of War to grant revocable licenses 1394 —03 26 402 is derived from the laws of war and the acts of Congress. (See Supp. to U. S. Rev. Stats., vol. 2, chap. 316, p. 56; Act App. July 28, 1892, 27 U. S. Stats. at L., p. 321, chap. 316.) The authority thus given the Secretary of War may be exercised as to property of the United States wherever situate, without regard to the territorial boundaries of the United States. Under the established practice of the War Departmlent, a railroad company in Cuba desiring to occupy roads, beds of rivers, land, or other property which at the time Spanish sovereignty was withdrawn froml Cuba belonged to the Spanish Crown, can secure only such temporary right so to do as is derived from a revocable license. The proposed order prescribed the rule for fixing the amount of indemnity for the expropriation as follows: XXVIII. The commissioner, in reporting on compensation due for values taken or damages sustained, shall take into consideration the increase of value acquired by lands through which the railroad is to be built and shall deduct the same in estimating the loss or damage caused by the company's taking possession thereof or of any right, interest, or use therein by expropriation. This rule is the same as the rule prescribed by the Spanish law of January 10, 1879, as follows: ART. 28. In the same (the appraisements) the bases for the appraisement must be stated in detail, whether relating to the character of the property or to the price affixed thereto. The experts shall take into consideration all the circunstances which may tend to increase or diminish their value with regard to other similar property which may have been the subject of recent appraisals situated in the same municipal district, and to the value of the part of the property occupied shall be added the amounts representing the losses and damages which may be caused them by the work on account of which the condemnation was effected; in compensation of said losses and danages or part thereof the benefit derived by the remainder of the property must also be taken into consideration. In the States of the Union the rule appears to be that, in the absence of a constitutional provision prohibiting it, the legislature may provide that benefits may be set off against damages, although this is denied by the Mississippi court. (34 Miss., 227, 241.) The State constitutions adopted in recent years usually prohibit such set-off, and the present tendency in the United States is in that direction. The attention of the Secretary is directed to the fact that such set-off by a railroad company is prohibited by the constitution in Alabama, Arkansas, California, Iowa, Kansas, North Dakota, Ohio, South Carolina, and Washington. The exclusion of benefits is required by statute in Indiana and Illinois, and by judicial decision in Mississippi. In the United States where benefits may be set off there is a diversitS of decision, which may be classified as follows: 1. Special benefits only may be set off against damages to the recainder, but not against the part taken. Rule in Maryland, Nebraska, Tennessee, Virginia, West Virginia, and Wisconsin. 403 2. Gentci)al as well as special benefits may I)e set off against damages to the remainder, but not against the vtlue of the part taken. Rule in Georgia, Kentucky, Lotuisiana, and Texas. 3.,Sbjlcia/ lenefits only may be set off against lboth dalalLges to remainder and value of part taken. Rule in Connecticutt, 5Maile, Massachusetts, Minnesota, Missourii, New Hanlllshire, New Jersey, North Carolina, Oregon, PennsylNvania, and Vrerimont. 4. General as well as special )enefit.s may be set off agatinst,)oth damages to renlain(ler and valule of pLart taken. Ruttle inl Delaware a\nd New York. In Ilany States a distinction is made between a taking by inmunicipal1 corporations for streets, roadls, etc., for the free use of the general public, Cand a talking b), a railrold conllpamli for the filancial. bellefit of the promoters. The objections to allowing'l slch set-off alre as follows: 1. Eniforced compensaition for deprivation of property 1and rio'llts to which the possessor does not consent can be inade only with liloliev; it can not be imade with other land or illcrease of vNalue to land. To illustrate: Natural justice revolts at the ideal that a man w\vho with time and money has secured a fine park, hoping to enjoy it in privacy and quiet, should hatve his efforts brought to naught by a railroad running through it, and, when he seeks compensation, to be told that nothing is due him, for the adveint of the road affords hinli an opportunity of running a beer garden. 2. These benefits are always prospective and therefore pLroble111 -atical and speculative, while the taking and da'mage is definite and ccr'tain. It would therefore ble a payment for present loss by a prospect of future advantages which might never be realized. 3. An individuatl whose property is increased in value ly Ia pulblic iinproveimment compensates the public therefor )by the increase ill his taxes. 4. To offset./e).?ncral benefits agal.nst the claims of the property owner is to require hinm to pay folr what the general public secures for nothing. The provisions of the proposed order regarding coondemnatioll proceedings skillfully adapt the instrumentalities of Spanish court procedure to the methods prevailing in the United States. U[nder Spanish law no person could be divested of title to property by having the title transferred to another, "except by virtue of aj4;cdCai decr,,e." (Art. 13, Const. of 186l9.) The Spanish constitution of 1876 provided that " no one shall be dPr'iv.e,{ of I '.~8 ople'rly except,by a comlpetent authority," but my investigation leads nme to believe that where the deprivation extended to a divestment of title in one and the transfer thereof to another there continued the necessity for a judicial decree. 404 Attention is directed to the fact that under the proposed order the value of the property taken or injured is fixed by one man, appointed a commissioner for that purpose. In the United States it is usual to have the appraisement made by more than one. The proposed order provides that such commissioner is to be appointed by the judge of the court of first instance, and any party in interest may appeal to the audiencia, which tribunal may annul the appointment; pending action by the audiencia the commissioner continues to act, and his action is binding. If the audiencia annul the apl)ointmlent, the judge of first instance appoints another commissioner, from which action an appeal can not be taken. (Sections XXIV and XXV.) The commissioner, being appointed, shall call together the parties claimning an interest in the property desired. At the time and place of meeting he first passes upon the title of the claimants, and only those found to possess at title or interest of value are admitted to the meeting. The question of title being disposed of, the matter of value is investigated and testimony is taken and reduced to writing. Thereafter the commissioner makes his award and reports the entire proceeding to the judge of the court of first instance, who is required to approve or disapprove the findings within five days. Thereafter and within five days i any party interested " may appeal the proceeding to the audiencia of the province. (Sec. XXVI et seq.) I doubt the advisability of holding a mass meeting of the property owners and attempting to deal with them in bulk. My experience in matters relating to railroad rights of way among the " sober Saxons" of this country induces ta belief that such a meeting is better calculated to effect a fracture of the peace than a dispassionate judicial determination. The property owners should certainly be given a hearing, but I think it would lbe better to hear them separately. The proposed order provides that at the time and place for the meeting of the persons asserting a right to indemnity the commissioner who is to take the testimony on which the award is based shall first enter upon an investigation of the titles asserted by the claimants. In that regard the provisions of said order are as follows: All such persons shall, before belng admitted to the meeting, disclose the nature of their interests, and the commissioner shall summarily and without appeal pass upon their qualifications. (Sec. XXVI.) This summary and final disposal of the question of title does not seem in keeping with the established ideas of justice or the stipulations of the treaty of Paris relating to personal and property rights in Cuba. Adequate provision should be made for appeal where the rights asserted are abridged or denied. My understanding is that titles in Cuba are complicated and that it is difficult to establish themi by what is ordinarily considered compe 405 tent proof. I further understand that this difficulty is increased in certain parts of the island by the loss of the Spanish records. Attention is also directed to the fact that the proposed order does not require that the commissioner shall be an expert in the matters over which he exercises authority or be conversant with the law of real property. Under these conditions it seems advisable to prescribe some rule of evidence for establishing a title, or at least pri)na) facie title, in (condemnation proceedings, and also to require the appointment of experts as commissioners. Under the Spanish law the appraisal was conducted substantially as follows: The company appointed an expert who fixed the value, and the cornpany tendered the amount to such person as it considered to be the proper party. If the owner was dissatisfied he appointed an expert who assessed the value, and the owner transmitted his report to the company and Ilade demand for the amount so ascertained. If an agreement could not le reached by the owner tand the company, the experts appointed )by each were to Imeet and, if possible, agree. Failing in this, the governor of the province requested the judge of the district to appoint a third expert, who fixed an amount and reported thereon to the governor, who decided the amount to l}e paid, from which decision an appeal lies to the Crown. (Sec. III, Title II, Law of Jan. 10, 1879.) The rule of evidence for establishing title in condemnation proceedings under Spanish law is as set forth in the followilng articles of the law of 1879: ART. 5. The appropriation proceedings slall lbe conducted with thle persons who, in accordance with the registry of property or the tax list, appear as the (owners or as having their possessions recorded. If on account of their age or for any other reason the owner of a piece (of property should be incapacitated to enter into a contract an(l should have no curator or other person to represent him, or the property should be the subject of litigation, the proceedings shall be conducted by the promoter jfi.cal, whlo miia validly perforlm ill lis name all that is stated in the foregoing article. When the owner of an estate is unknown, or, if known\, lis whereabl)(ts are unknown, the order or decree relating to exl)ropriation of the estate shall be pullished in the Boletin ofic(i(l of the province and in a (tcertla (1t 3Mtrlrid. Shouldl no statelnent be forthcomling within a period of fifty days, either froml the ownler in person or through somIe one duly elnpowered, it shall be presumed that conlsent is given for tile representative of the department of public prosecution to represent said owner in the appropriation proceedings. ART. 6. All those who can not alienate the property which they admlinister without the permission of a judicial authority are authorized to do so in tlhe cases mentioned in this law without prejudice to securing in accordance with law the amounts which they may receive in consequence of the alienation in favor of the minors or wards. In no case shall said amounts be delivered to theni, but they shall always Tbe lelposited and held at the disposal of the proper judicial authority. ART. 7. Transfers of ownership, under whatsoever title, shall not prevent the continuation of the expropriation, the new owner being considered as substituted in the obligations and rights of the former owner. 406 ART. 8. The rents and contributions pertaining to tie property to be expropriated for works of public utility shall be admitted during the year following the (late of the alienation as an evidence of the legal capacity of the person condemned to exercise the rights which may pertain to him. The general features of these provisions of the Spanish law should be incorporated in the proposed order. If a satisfactory rule can not be provided, provision should be made for appealing disputed questions of title to the courts. In addition, I suggest that said conlmission1. Be increased numerically. 2. Be required to take an oath and act thereunder. 3. Be required to personally inspect the premises to be affected 1by its action. 4. That the railroad company l)e required to furnish the commission a generlal plan of the line with longitudinal profile and cross-section drawings of the proposed construction of the road on the premises sought to I)e condemned. These drawings are necessary to advise the coommlissionl as to the contemplated construction and enalllle it to determinel the character and extent of damlage to the property not tlaken. Section X of the proposed order is as follows: SEc,.. M. Maximllu tariffs for tlle transportation of )passengers, 1)aggage, and freight shall be sulbmitted ill advance to the soc'retarv of publlic works for his approval; and he may afterwards reduce such rates once in every period of live years. Against such decisions and reductions by tle said secretary any railroad complany may api)eal at any timie to the supreme court of Cuba which, sitting as a court of administration, shall decide the question summarily, after calling for such reports as it; may deen necessary. It is unnecessary to discuss herein the question of regulation of railroad rates by the government. It is sufficient to direct attention to the fact that upon the maximum rates being once established the authority of the governnment to reduce tliem can not be exercised for five years. The justification or necessity for reduction of railroad rates depends upon conditions which challge continually and not at stated intervals. The commerce of Cuba is unsettled and undeveloped. Classification of freight at this time would b)e largely guesswork. If the government is to exercise this powNer, it should be free to exercise it as necessity requires and prudence dictates. If the government is to regulate the tariffs, it should also regulate the classifications, otherwise the authority to regulate is a "' barren scepter." The provision of said section regarding appeal to the supreme court should be modified 1by inserting the words "and evidence" after the word reports. For your further information I transmit herewith a translation of -the Spanish "law of January 10, 1879, relating to forcible alienation for a cause of public utility." This law had not been translated when 407 your request for this report was received, and the necessity of awaiting its translation has occasioned a slight delay in complying with your request. The necessity for increased transportation facilities in Cuba(, and the continued demand of the inhabitants thereforl, inlduced the mnilitarv government to attenl)t to provi(le for the construction of railroads in the island. A general order was drafted and submitted to the Secretarv of W~ar. The folregoing report was lmntde on said order; the report was communicated to the military governor, and the proposed order modified so ats to meet the objectioIns anld suggestions set forth in said rep)ort. (See Order No. 34, Hlettdquarters I)epartlnlt of Culba, dated February 2, 1902.) IN THE MATTER OF AN INQUIRY FROM THE STATE DEPARTMENT REGARDING THE CLAIM OF MERRYWEATHER & SONS, LONDON, ENGLAND, FOR DAMAGES OCCASIONED BY THE REFUSAL OF THE CITY OF MANILA TO PERMIT THE FURTHER EXECUTION OF AN ALLEGED CONTRACT FOR SUPPLYING CERTAIN FIRE APPARATUS. [Submitted 1)ecenmber (;, 1900. Case No. 999, Division of Insullar Affairs, War l)eIlartmenut.] SIR: I have the honor to acknowledge the receipt of your re(luest for a report on thle above-entitled matter, amll ill response thereto I have the further honorI to report as follows: The matter reaches the 11War Deplartmient b}y reference fronl the State I)epartment of certain notes froml the 1British aml)sslador at this capital calling attention to the claim for dlamages mllade by Messrs. AMerryweather & Sons, of Londoin. Eingrland, a British trading conc.ern. Trhe statement of facts lntade by AIerryweathelr &- Sons is controverted by the municipal authorities of Manila. Messrs. Merrvweather & Sons assert that, prior to the late Spanish-American walr, the municipality of Manila entered into a contract with thein for the purchase and sale of certain fire apparatus for the use and benefit of the city. The present municipal authorities of Manila deny that such contract was ever entered into by the city and insist that the contract, if it ever existed, was between Messrs. Merryweather & Sons and Messrs. Aldecoa & Co., a nlercantile concern doing,business in Manila. (See doe. 17.) The present nmunicipll authorities of Manila assert that two members of the firm of Aldecoa S& Co. were also members of the Manila city council, and that said firm contracted with Merryweather & Sons for 408 said fire apparatus, expecting to thereafter dispose of the same by a sale to the city. (See doc. 17.) The present municipal authorities of Manila refuse to accept and pay for said apparatus, and assert that it is not needed by the city nor adapted to its use. (See doc. 19.) The documents now before this Department do not set forth any proof of the existence of said contract nor make any showing in regard thereto further than the statements of complainants contained in their letters. If it were conceded that said contract was entered into by the city, it does not follow that the city was not at liberty to refuse compliance therewith by submitting to the resulting liability for damages. In the opinion of the Attorney-General as to construction of sewers and pavements in Habana (Dady & Co.), delivered to the Secretary of War July 1, 1899, it is stated: No one has a right to insist upon the specific performance of a contract for the improvement of streets in a municipality. A city may suspend or entirely abandon a project, although covered by a valid contract, subject only to the right of the contractor, if dlamaged, to recover just compensation. (22 Op. 529-530.) The complainants recognize this right and therefore do not contend for an opportunity to complete a sale and to require payment of the purchase price. They demand damages for the abandonment. Complainants state that the purchase price was ~3,886, and the damages are placed at ~1,300. The measure of damages adopted by them is probably the difference between the contract price and the market value of the apparatus. No showing has been made to this Department as to whether or not this difference amounts to ~1,300. The attention of the Secretary is directed to the fact that, primarily if not exclusively, this controversy lies between the complainants and the city of Manila. The questions involved are of a kind and character which are ordinarily resolved by the courts. There does not seem to be any reason why this controversy should not be relegated to the courts and complainants required to pursue the ordinary remedies afforded thereby. Apparently there exist no reasons for the Secretary of War to exercise his authority in a controversy between an individual and a municipality in the Philippines over a disputed contract than would apply in the case of a similar dispute between individuals. From the correspondence submitted by the State Department it appears that Messrs. Merryweather & Sons entertain the belief that the Federal Government of the United States is liable for the damages alleged to have been sustained by them. (See doc. 18.) In arriving at this conclusion, the complainants have ignored the fact that the acts of which they complain were performed by the officials of the city of Manila. When that city became subject to military occupation the incumbents of political offices for the administration 409 of existing laws ceased to possess authority to continue such administration. Their several terms of office lapsed, and the authority to administer such powers as the municipality retained, passed to such persons as were designated for that purpose by the commander of the occupying military forces. It was the same as though a new corps of municipal officials had been elected and installed in office. The powers exercised in refusing to recognize said alleged contract were powers possessed by the municipal corporation, and exercised by municipal officials for the benefit of the municipality. If a legal liability for damages resulted therefrom it attached to the city, and was not inposed upon the Federal Government of the United States. If this conclusion is erroneous and a liability did attach to the Federal Government of the United States a claim therefor is one or unliquidated damages. The War DeIpartment is not authorized to settle and adjust claims for unliquidated damages. Such claims must be submitted to Congress. If the conlplainants insist that the Federal Government of the United States is liable for said unliquidated damages they should induce their (Goverlnment to present their claim to the State Department through diplolmatic channels, and thus comnply with the rule adopted by Congress that alien claims liust be approved by the State Departlnent before Congress will consider them. Apparently the complainants are of opinion also that the lilitary government of the Philippines, as distinguished from the municipality of Manila, is liable for the payment of the alleged damages. That is, the claim should be paid out of the insular treasury, instead of the municipal treasury. Undoubtedly the Secretary of War, as the head of the military government in the Philippines, has such authority over the funds of said government that he may direct the application of said funds to the payment of this claim if his discretion prompts hini so to do; but in order to secure such action it is necessary that he should be informed as to the facts involved. In the instance under consideration the vital facts are disputed, and the local authorities deny the existence of the contract on which the claim is based, and no evidence is submitted to establish the amount of damage under any rule of measurement. If the Secretary is of opinion that )rolbable caue sexists for a belief that the military governmelnt of the Philippines is liable in this matter, it would seem advisable to refer the case to the military governor with instructions to appoint a commission to investigate the matter and report thereon, through the proper channels, to this Department. Ordinarily it would hardly seen advisable to admit as possible that the municipal authorities at Manila could impose a liability upon the treasury of the insular government. But this instance involves certain unusual proceedings not hereinbefore set out, which may induce the Secretary to believe that the military government of the islands is 410 equitably if not legally bound to respond in proper damages if the alleged contract was entered into by the city. They are as follows: On June 3, 1898, Messrs. Merryweather & Sons addressed the following communication to the Hon. John Hay, at that time ambassador of the United States at London (see doc. 10): LO-NDoN, 3d,June, 1S98. The lion. JOHN HAY, 5 C6rrlton lHolte Terrace, AS. II YoI l EXCELLENXCY: In the month of February last we received an order from the chief of the fire brigade at Manila, Philippine Islands, for some steam fire engines and fire-brigade apparatus, to the value of a considerable sum. This apparatus was in the course of construction on the outbreak of the war, but none of it was finished in time to be dispatched before hostilities commenced. All arrangements, however, were made for payment, on dispatch, through a firll of bankers in London, and the whole of the apparatus was put in hand by us. We have lately noticed in some of the papers )publishe(l in the United States paragraphs to the effect that M3r. Williams, the consul for tlie United States at Manila, intelnls to use his best efforts to induce the city to equip its fire department wholly from the United States, and it seems to us that when Manila is occulpied by tlhe Initcd States forces, influence lnay le brought to llar to induce the Spanish officials in 5Manila to endeavor to counterlnand the order iln question. As the withdrawal of the order, now that the apl)aratus is practically completed, would involve a serious loss to us and as we can not believe that time Government of the United States would desire that the operations in Manila should interfere with private business, especially with an English house, we venture to ask whether it is possible for you to represent to the authorities at home the desirableness of requesting their officers in the Philippines not to take any steps to induce the officials in command of the fire brigade at Manila to alter the arrangements already made with us for the supply of the mnatirial required. We are quite sure that having regard to the universal desire in this country for the success of the American arms in the present war your Government does not wish that success to result in the transference from English houses of business already in course of transaction withl any of the Spanish colonies. Soliciting your kind offices il the mnatter, which will be greatly appreciated, We have the honor to relmailn, sir, your obedient servant, MERRYWEATHFER & SoNs, Lt. The American ambassador forwarded said communication to the State I)epartment, and the Secretary of State on June 21, 1898, referred it to the War I)epartment with the following comment: I have the honor to submit the letter of Messrs. MAerryweather & Sons for your consideration, to the end that such instructions on the subject as mlay be deemned proper may be sent to (;eneral Merritt. (See doc.^9.) At this time (June, 1898) the Insular I)ivision of the War Department was not in existence. The letter was sent to the office of the Adjutant-General. The United States was then engaged in actual hostilities in conducting the war with Spain. Since the matter related, in a measure, to the conduct of the troops in the field, the letter was advanced to the office of the Major-General Conmmanding, where it received the following indorsement: The Major-General Commanding recomm-lends favorable consideration of the request of 3Messrs. Merryweather & Sons..(2d Ind. doc. 9.) 411 Thereafter the document was advanced to the office of the Secretary of War, where it was indorsed on July 11, 1898, as follows: Approved and respectfully returned to the Adjutant-General to transmit a copy of these papers to Major-General Merritt, commanding the Eighth Army Corps, for his information and guidance. (4th Ind. doc. 9.) A copy of the papers and indorsements was sent to Major-General Merritt. (5th Ind. doc. 9.) Thereafter and on July 25, 1898, the following communication was sent from the American embassy in London (see doc. 7): SIRs: With reference to your letter of the 3d ultimo to the ambassador requesting that your contract with the authorities of the fire department at Manila be not interfered with by the American officials when they occupy that city, I am directed by His Excellency to acquaint you that he has received a communication fromii the Secretary of State informing him that your request has been favorably considered lby the Secretary of War, and that the papers in the case will be transferred to Major-General Merritt conlmanding the Department of the Pacific for his information and guidance. IHEN-1R WHIITE. Messrs. AIERRYWEATHIER & Co0., ('remr'iclh Road, Lodon2. The complainants herein are certainly not amenable to Ia charge of lack of diligence in asserting or vigilance in protecting their claims, since they appear at the American emlil)assy in London ol Juine 3, 1898, at which time the smoke of the burning Spanish vNessels in Manila Bay had hardly disappeared. The complainants now insist that they were induced to proceed with the construction of said fire apparatus by said correspondence with the American ambassador. Therefore the attention of the Secretary is especially directed thereto. The attention of the Secretary is further directed to the fact that few cities are completely and adequately supplied with fire apparatus. If the apparatus involved herein is suitable and the city has a present or prospective need therefor, a speedy and happy solution of the present difficulty would be to accept the apparatus and pay a reasonable price therefor. Opposed to this, however, is the fact that the municipal officials under the American administration, "upon investigation, reached the conclusion that the engines and apparatus ordered from this London firm were in no sense adapted to the needs of the city of Manila." (See Doc. 19.) Pursuant to the views expressed in the foregoing report, the Secretary of War responded to the inquiry from the State Department as follows: DECEMBER 6, 1900. SIR: I have the honor to further acknowledge the receipt of your letters transmitting copies of the several communications received by the State Department from the British embassy in this capital, relative to the claim for damages alleged to have 412 been occasioned Messrs. Merryweather & Sons, London, England, by reason of the refusal of the present municipal authorities of Manila to carry out the provisions of an alleged contract for supplying certain fire apparatus to said city, and requesting the views of this Department. In reply thereto I have the honor to state as follows: From the correspondence submitted it is difficult to determine whether MIessrs. Merryweather & Sons elect to urge said claim against the municipality of Manila, the military government of the Philippines, or the Federal Government of the United States. If presented to either of said governments the claim must rely on an alleged contract with the city of Manila, the creation and existence of which is denied by the present municipal authorities of Manila, who assert that said contract was not entered into by the city, but if a contract existed it was between Messrs. Merryweather & Sons and Messrs. Aldecoa & Co., a local Manila firm. As at present advised, I am of the opinion that if the existence of the alleged contract were established the alleged liability, if any exists, would attach to the municipality of Manila, and would not attach to the military government of the Philippines nor the Federal Government of the United States. The municipality of Manila is a municipal corporation, and, as such, may be sued in the courts. The controversy between Messrs. Merryweather & Sons and the city of Manila stands on the same footing as a like controversy between individuals. The questions involved are of a kind and character usually resolved by judicial proceedings. Therefore the parties secure an adequate remedy by applying to the courts. Ample provision has been nadle by the military government of the Philippines for the protection of the rights of Messrs. Merryweather & Sons under the alleged contract, by the continuance of the established laws under which the contract was made, if at all, and by the establishment of competent courts whose decree will be enforced by the executive department. Yours, very truly, ELIHU ROOT, Secretary qf Ihamr. The SECRETARY OF STATE. This matter being again presented to the Secretary of War, the final action of the War Department thereon was as follows: MARCH 7, 1901. SIR: I have the honor to acknowledge the receipt of your letter of January 19, 1901, referring to the claim of Merryweather & Sons for damages occasioned by a refusal to accept certain fire apparatus under the terms of a certain contract with said Merryweather & Sons, alleged to have been entered into by the city of Manila, P. I., while that city was under Spanish sovereignty. I have already determined that since the local authorities deny the creation of the alleged contract, I will not arbitrarily order the payment of damages resulting from an alleged violation of said disputed contract; and since the local authorities insist that the apparatus is not fitted for the needs of the city, I will not arbitrarily order the purchase thereof by the city; nor will I exercise judicial powers and hear and determine the disputed questions arising between Merryweather & Sons and the municipality since both parties are competent to sue and be sued in the courts of the Philippines. (See letter dated December 6, 1900.) Further consideration of this matter as relating to an existing or alleged liability of the municipality of Manila will not be attempted by this Department. Inclosed in your letter is a copy of a communication from Merryweather & Sons, dated January 8, 1901, wherein it is stated that application to the courts is not open to them, for the reason as set forth in said communication, "that the refusal to accept the fire apparatus contracted for was not made by the municipality of Manila, nor by Messrs. Aldecoa & Co., but by the United States military governor of the Philippine Islands." 413 In support of this declaration there is set forth a co)py of the notice received by Merryweather & Sons, reciting that the provost-narshal-general is instructed by the military governor to inform Mlessrs. Merryweather & Sons "that the military governor of tle city does not desire the fire apparatus." * * * The military occupation of the islands by the United States being accomplished, the authority to administer the affairs of civil government passed, under the laws of war, to the commander of the occupying force. To properly admlinister said affairs, said commander duly designated certain persons to perforn the duties appertaining to certain offices, among others the offices of the municipality of Manila. These incumbents so installed in municipal offices were as fully authorized to act for tlle city and to bind the municipality thereby as were their predecessors. If thle action of these municipal officers in this instance created a liability which w ould attach to the city under orlinarv conditions, the liability attached unmler the extraordlinary conditions then existing. (New Orleans r. Steainship Co., 20 \Wall., 3:87.) Messrs. Merrvweather & Sons, in tlleir commlunication (lated January 8, 1901, addressed to the ambassador of the United States, elect to consider the Federal (overnment of the United States as being the one liablie t t tlem for the alleged (damages. This claim, therefore, becomes one for unli(luidated damlages resulting froin an alleged Interference by the military authorities of the United States with the performance of an alleged contract between sail concern and tlme city of Manila. As the War Department was not a party to said alleged contract, thle Secretary of War is without aut-hority to settle and adjust the claimi. Were a claim of this character presented to tile War Department by a citizen of the United States, the extent of the service which the Secretary of War could perform for the claimant would be to transmit the claim and accompanying (ocullments to Congress. In the instance under consideration the Secretary of War can not perform even this service, for the claimant is not a citizen of the 1.nlited States, but is an alien. At the close of the civil war a large number of "alien claims" were presented to Congress. In 1.74, upon the recommendation of the committee on alien claims, Congress assumed the position that the right of petition guaranteed by the Constitution enabled a citizen of the United States presenting a claim against this;overnment to Congress to demand the consideration of said claim as a r1ilht; that said privilege did not extend to aliens; and thereupon Congress declared that clainis of aliens can not properly be examinedl by a c(ommittee of Congress, there tleing a dlelartment of this (Government in which mIost questions of an international character may be considered-that which lhas charge of foreign affairs; that Congress can not safely and by piecemeal surrender the advantage which may result from diplomlatic arrangements; that this has been the general p)olicy of the (overnment, and Congress has not generally entertained the claims of aliens, and certainly should not unless on the request of the Secretary of State. (See Report No. 498, Committee (o W'ar Claims, first session Forty-tlird Congress, May 2, 1874.) Said report also contains the following letter: "DEPARTMENT OF ST'ATE, " lTs^hihgtoi,, Ap-ril 22, 1874. 'SIR: In reply to your telegram, stating that claims are presented by French citizens and other aliens through Congress to the Committee on War Claims, I have to remark that such presentation is entirely inconsistent with usage, which requires that aliens must address this Goverlnment only through the diplomatic representatives of their own governments. "This Department refuses to entertain applications or to receive claims from aliens except through a responsible presentation by the regularly accredited representative of their government. 414 "I have also been under the impression that Congress refused to receive petitions or claims from aliens. Such, I am advised, was at one time the rule of the House of Representatives, and such is the rule at present in the Senate, I am1 informed. The propriety of the refusal to allow an alien to intrude his claims upon Congress can not be questioned. "I have the honor to be, sir, your obedient servant, "IAMILTON FisII. "IIon. WMT. LAWRENCE, "NfHo.Se of Representatices." I am unable to discover that the practice thus established has been al)an(loned. It therefore seems advisable for this Department to conform thereto. Very respectfully, E],LIHU- Roor(, S(ecretor!y of JItr. The SECRETARY OF SITArE. THE CLAIM FOR $30,000 PRESENTED BY THE AMERICAN MAIL 'STEAMSHIP COMPANY FOR SERVICES RENDERED THE UNITED STATES IN TOWING THE UNITED STATES ARMY TRANSPORT M'PHERSON TO HAMPTON ROADS. [Submitted May 28, 1900.] SYNOPSIS. 1. The property of the United States Government, rescued from the perils of the sea while in the possession of officials of that Government, is not liable to a lien for salvage. 2. The United States having received tie services and resulting benefits is liable for compensation, the measure of compensation being the fair and reasonable value of the service rendered under the conditions existing at the time and place of service, and can not include any reward in the nature of salvage. SIR: I have the honor to acknowledge the receipt of your request for a memorandum on the legal questions involved in the claim for $30,000 presented by the American Mail Steamship Conmpany for services rendered the United States in towing the U. S. A. transport J1AcPler.wson to Hampton Roads. In compliance with said request I have the further honor to report as follows: In order to avoid possible misunderstanding it is necessary to state the case as it presents itself to my mind upon examination of the papers submitted and the chlaracter o!f tli, c(tv-l, t/lereinr j)pested. It appears that on February 19, 1900, the U. S. A. transport MJcl( erson, homeward bound, while off the coast of North Carolina, became disabled by the breaking of the tail shaft in the stern tube. Thus disabled the ship could not be steered and was at the mercy of the wind and waves, and so continued until February 23, 1900, when it was sighted by S. S. Admiral Sampsor, belonging to the Amierican Mail Steamship Company, the claimant. The Sampsonb saw the signals of distress which the iJcPlterson. was flying and approached the latter vessel. At 11.03 a. m. the S&ampzson 415 was within speaking distance of the ilcP/ciron, and its disabled condition made knownl. (See affidavit of L. H. Higgins, master of the Sampson.) The iMlJchei,son, requested the ISampsoan to tow it into Hampton Roads. A consultation was had on board the Samposon, which resulted in the Satmpson undertaking the service requested. A hawser was passed from the,Jl JIewrson, to the s')p.)on, and at 12.43 the Jfcl'ierson started ahead under tow. (See log of iJfcherson.) The ships arrived in Hampton Roads on the morning of Feblruary 24, where the lcJllVerIson, dropped anchor at 8.30 a. in. (See log.) The attendant circunlstances and conditions under which the CSagemps]on performed this undertaking make it a salvage service of highly meritorious character. Under these conditions the owner of the S(,rmpso), is entitled to compensation, and if the iftcP/cirwon, we\re owned by tan individual or private association the claimant could proceed to recover salvage b)y libeling tlhe cl'Perso,. and its cargo ay a proper action in admiralty. Such proceeding is jdiicial, and the steamship colmpany could no more conduct it in the War Department than it could an action to condemn private property for the use of the company. The court of admiralty (done has jurisdiction to try a questioll of salvage. (louseman 1. The Schooner North Carolina, 15 Pet. 40, 48.) This Department is bound to consider this claim as founded on a contract or not consider it at all. Not being able to libel the property of the United States by an exercise of the powers belonging to the War Department, the steamship company has recourse to a claim for compensation for services rendered under contract, and abandons the position of a salio/ to assulme that of a contractor. Very different rules govern the determination of salvage than govern questions arising on contract. Salvage is a compensation yi,ren )y mar.ritime lair for services renldered in saving property from impending peril on the sea or other water where interstate or foreign commerce is carried on. In awarding salvage the points in controversy are, were the services of a kind and character to create a liability for salvage, and if so, how much is due and between whom and how shall it be divided? Usually the amount found due is apportioned between the owner of the vessel and the crew performing the service. There are no fixed rules for the determination of these questions in the United States, and they are left to the sound discretion of the court of admiralty. Being lodged in that court, such discretion can not be exercised by the Quartermaster-General of the Army nor the Secretary of War. Salvage is always unascertained, i. e., unliquidated, until fixed by the court, and claims therefor are without the jurisdiction of this Department. It is true that a person whose property is liable to a claim for salvage 416 may settle or adjust the claims of his benefactors without going into court. This presents the question: Is the personal property of the United States liable for salvage? The rule announced by the United States Supreme Court is that when the property is not in the possession of the United States, but has been surrendered to a common carrier contracting to deliver the goods on his own responsibility, and rescued while in such custody, the property is liable to a lien for salvage. The right to such lien is limited to property not in the possession of the United States, because the court is without the power to bring the United States into court and adjust the lien and enforce its orders in regard thereto where the United States is a direct party to the action, unless Congress has authorized the court so to do. The theory on which the court proceed seems to be that by parting with the custody or physical possession of the property the United States places it in such condition that the lien attaches and the property comes into court so burdened; that when the United States seeks to recover the property it does so as a plaintiff, and thereby waives its exemption as sovereign and voluntarily assumes the position of an ordinary suitor. (The Davis, 10 Wall., 15, 21; The Siren, 7 Wall., 152; The United States v. Wilder, 3 Sumner, 308; Briggs r. The Lifeboats, 11 Allen, 158; Marvin on Wrecks and Salvage, sec. 122; 1 Parsons, Maritime Law, 324; 2 id., 625.) In the instance with which we are now dealing the property was in the possession of the United States at the time of the rescue, and it would seem to follow that the lien for salvage did not attach. If I am mistaken in this and such lien did attach, the possessor of the lien must present his claims to a court of admiralty. Before leaving the subject of salvage it is necessary to call your attention to the rights and claims of the crew participating in the rescue. These persons are not before the l)epartment, and any settlement of salvage claims of the owners would not bar the claims of the crew unless the owners are now authorized to act for them in said matter. So important are these salvage rights of seamen considered that Congress has provided thatEvery stipulation by which any seaman consents * * * to abandon any right which he mia hlave or obtain in the nature of salvage sliall be wholly inoperative. (Sec. 4535, Rev. Stats.) The purpose in giving salvage is twofold-to reward services performed and stimulate like services in the future. As the court say in The Baker (25 Fed. Rep., 774): The peril, hardship, fatigue, anxiety, and responsibility encountered by the salvors in the particular case; the skill and energy exercised by them; the gallantry, promptitude and zeal displayed-are all to be considered, and the salvors are to be allowed such a generous recompense as will encourage and stimulate similar services in others. The services and attributes above referred to pertain more largely to the crew than to the owner of the rescuing vessel. The owner of 417 the rescuing ship is to be compensated for tlle use of his property and its hazard, but he is not entitled to receive the rewaLrd given is seamllen for gallantry in rendering succor to another ship at sea. It will be necessary to relmembler this in determining what is to l)e included in fixing the owner's (aofta l eileritd under the impliied (0ontract relied upon herein. This brings us to the consideration of the claini as I understand it is presented, nam11ely, an accolunt for services rendered the IUiiited States under an implied contract to pay therefor. The United States having received the servi(ces:land resulting 1)eneifits, is required to )pay for theml the salle as though perfo'rmed pt1rsuant to a written contrtact. The liability exists in the ablsence of a written contiac'(t; the difference bleiing that wlhen the colntriact is duly entered into and redueel ( to writing thle United States is boulnd by thel price,Ya'reed upon by its officiers; butt when tile contract is not iln wr\iting, the persoin perf(orming the:;ervice is req(luiied to accept a: fair aInd reasonable co0mpensation for such services a's lie actually l)erformls. (Clark 'v. United States. 'I5 '. S.. 53!; Wilson r. United States, 93 C. Cis. 1.., 77, 81.) Inll order to lhave it:s claimsn c(onsidered 1,v the War I)epartment, it is lcc(essalry f(r the steamllship ('c()l):lly to take the l)ositiO that it was a contractor. aclting in puIrsmuallce of an existilg ('cotr:alt to perfol'r the service for the JMll'/r..,on. This bleing true, not only does the conmpalny cease to be considered a salv-or, }but it also eliiminates froll consideration the,special features which give the service a salva'ge charac'ter, suttc( as gallantry, skill, courage, plropllltitude, peril to life and pr'operty by which the service was accomplished. These 'are imlportIant Imatters to be consideredl ill iixing the reward given to salvolrs, but 1ae not considered( ill )paVing c(ntractors for complying with their c(otracts. Contractors aire not.rcw(/r(ded;/ they are pa/od. If prior to the perfornliance of tills service )by the Sa/,,l)sor, the steIamship compatny had entered into a written colntract withl the (Government tha't for a designated sum it would lerform the service, the fact that ini order to (c'rry out the contract the ship andl crew render such lervice as in the tabsence of the contract would elntitle theml to a salvage would not authorize the Quartermaster-General to pay the conmpany more than the stipulated price. If the contrary is true, 1why may he not exercise a like authority and reward a teamster in his department for gallant 'and meritorious conduct The power to devote the money belonging to the United States to the payment of re?(wards is vested in Congress. The only way the Quartermaster-General ca:n acquire jurisdiction to consider this claim is to treat it as being for services rendered under a contract to perform the services under the actual conditions existing at the time they wevre performed, but which contract did not fix the price to be paid. 1394- 03 --- 27 418 The question is then narrowed to the inquiry as to -What would be the mnarket price for such service. To arrive at this, it is proper for the Quartermnaster-General to consider the matter as though the exigency permitted him to advertise for bids for the performance of the work of relieving the JfcJPlhersonb f rom the, situation in which it was involved at 10.30 a. ni. February 23, 1900. The bids being received and opened, the Quartermiaster-General, in passing) upon the question of their being fair and reasonable,, would consider two things: (t) The ordinary chargre for towage in ordinary weather-; (2) the amount to be added for increased service occasioned by the condition of the wind and s;ea and the ability of the 3/cheiwisoyl to float with its carg-o intact. The service rendered by the $S (mjj)sofl, involved herein, beg-an not earlier than 10.30 a. mi. February 23, 1900, when the KSaunis~ is sighted the JfcP/wirson, and ended not later than S.380 a. inl. Februtary 24, 1900, when. the 3fcJ~herson, dropped anchor in 11amupton ]Roads. The, condition of the sea and weather duiring this period was as followNs (see log. of the i, i~~o) ~E IH tUARitY 2,3,) j9O' 4 (. in.-Strongr to heavy gale; tremelldons heavy sea; s~liip~ rolling and iabor~n~) hetiv; inlroliv evl 6 t.Modlerate, gale; hieavv lbeani sea;si olm evl 10 -)() (( In-ightedS'. S. — 1dmia damlASo~soi?; hloistedl signals asking to b)e taken in tow. Answeredl ves. IDriftedl buoy with sniall line attached. S- ent, end of steel cahleI onl boaii dl A ooo Lat. 34 3:3 -N., lomng 74.25 W. S4trong breeze, rongh sea, and over-cast. Cap~e Henry- -N 29, WN. 1(32 miules. 124 w. (0Started ahead under tow. Streannwd lo.2).). a(. -Vind and sea increasing,. a ]). o(.-A-oderat~e gale; rough, (clifused sea; o)vercast. 6.301p. rn.-Diamiondl Shoal L. V. abeam, (list. (3 miles. i.30]). mn-Hatteras light albeamn, (list. (3' miles. (lear, strong breeze; sea mnioderating and getting smooth by degrees. l0a ). )).-IBoodi Tslandl light, aheamn, (list..12 miiles-. Fresh breeze; clear, smooth sea. Svrumo.\Y, FF1311AiRy 24, 1900. Gentle breeze; clear sky; smooth sea. 2.15 (t. m.-Currituck light abeami, dist. 14 minles. 6.35 a. (0.-Stopped to take p~ilot andl proceedled. 6.45 (i. m(.-Calpe Henry abeani. Rteportedl ship. 8.30 a. al.-TProplped anchor, 01(1 Point Comfort light-hmonse. The attention (if the Quarternlaster-General is directed to the statemient in affidavit of the master of the Sampson, that the enginles of the Sainpson were '' slowed (lownr" at 11. 03 a. in. and the Samnpson inaneuvered to get under the stern of the iJfcI'l1wrson. Arriving within speaking distanee, a colloquy took place between the officers of the respective vessels, and after a conference onl board the Samnpsoni a hawser was passed and fastened. The log of the 3fcPkbe,1on1 shows that the ship "started ahead under tow" at 12.45 p.- inl. of that day. It is not only proper lbut necessary for the Quartermiaster-General to 419 consider these things, for the bids are supposed to have been made with reference thereto. In further consideration of this matter as being determined by passing upon bids, attention is directed to the fact that no consideration would be given to the cost or pr')ler'ty cal(e of the Sampsi2on. The ability of the ships tendered to perform the service required would be considered, but those having the required capacity would stand on an equal footing without regard to their financial value. Nor could it be considered that in performing the service for which the bids were submitted the Sa(ipson would be obliged to temporarily abandon its regular employment and sustain a loss thereby. Such matters are proper enough for the otc',es to consider, but are not within the limited powers of an officer of the United States charged with disbursing the public funds specifically- appropriated for a particular purpose and subjected to specific lmethods, i(,,l;.s there is now at the disposal of the Quartermaster-General a fund which he is at liberty to expend as a bonut.s' under the exceptional conditions presented )by this case. As to the existence of such a fund I amn not advised. It would not b)e proper for tlle Quarltermalster-Generall, in the exercise of his limited powers in such matters, to consider that it would be to tihe financial benefit of the United States to pay $3(,000, or any other smnl, rather than lose the translport. Coil)pensation for services is not fixed by that rule where the laws of hmlllanity or civilization are respected. The law does not permlit even salvors to say to shipwr'ecked tunfortunates: '" How much is rescue worth to yon?" Even in salvage cases the question is what is just and reasonable, tand the courts frequently set aside positive contracts for the patymlent of a specified sumi to rescuers when found to be unreasonablle. (-Iousemnan v. The North C.arolina, 15 Pet.. 40; Good Intent 'c. Atlantic Insurance Co., 109 U. S., 110, 117.) The loss and daimage occasioned the steamship comlpany }by reason of the SaCl))pso) groun1ding' in the harbor at Jallaica cantI not b)e considered by the Quartermateater-Gelneral. At best they are unliquidated damages, with which he is not authorized to deal. Such daimanes are also too remlote to (ceate a liability on the part of the Unitedl States.. If entrance to said harbor is hazardous both by day and niight, the damage was not occasioned by the United States any more than are the ordinary perils of the sea. If entrance to the harbor was dangerous only at night, it was the duty of the ship's master to remain outside until daylight. If the weather did not permit this to be done, then, again, the entrance became an ordinary peril of the sea, for which the United States could not be held liable. It seems very plain that this alleged loss and damage can not be considered by the Department when it is remembered that the Quartermaster-General is compelled to deal with this steamship company as possessing only the rights of an ordinary contractor or not deal with it at all. Would an ordinary contractor whose vessel went aground while he was returning 420 to port after performing his contract be entitled therehy to have his contract price increased? The Quartermaster-General can not consider the loss and damlage asserted to have been occasioned by the bananas awaiting slipment on the Sampsont ripening during the delay of two days resulting froml the Samfrpson, deviating from its course. The showing now made does not disclose the amount of said damange, nor does it disclose that tlle fruit was owned b1 the steamship company. (See letter of Neale of May 4, 1900.) It does appear from said letter that when the Slntplson grounded in the harbor it was so severely injured that it w\as obliged to return to New York ' in ballast." As stated above, the United States is not to be held responsible for the Saon1pson, leinlg stranded, and it does not appear that if the Sam)pson had not run aground the prospective cargo would have reached its proposed market in a lmarketable condition. The damage to tie f'ruit seems to have resulted froll the accident to the Sarmp)son. The adjudicated case known as' Te A1l,(ta) (54 Fed. Rep., 197) has no application to claims of the character of the one under consideration and the procedure now being taken thereon by the Department. The Akalct case was a proceeding in (admiralty to secure salvage by judicial determination of the rights of individuals under maritilme law. The claim under consideration is presented to the QuartermasterGeneral of the United States Army for services rendered under a contract with the United States. The decision in the ckatba case was rendered by a reviewing court (United States circuit court of appeals, fourth circuit), and the only questions decided were (1) that the testimony showed the services rendered were salvage services, and (2) that a reviewing court will not disturb the amount of salvage avwarded by the trial court "' unless for some violation of just principles or for clear and palpable mistake or gross overallowance." It is a well-known rule of law that an appel late court will not reverse decrees as to the amount of salvage except for some clear mistake or gross overallowance. (8 Wall.. 448; 10 Wheat., 306; 10 Pet., 108; 108 U. S., 352; 122 U. S., 256.) I fail to see how this rule of conduct prescribed for themselves by appellate courts when reviewing the action of inferior courts in salvage cases is to be applied to the proceedings in this Department on claims of the character of the one under consideration. One thing appears in the opinion in the Akaba case which bears upon the claim now being considered. The Akaba was rescued by the City of Birmningham. From the statement of the case it appears (54 Fed. Rep., 198): Just after these two reached an anchorage and the A kaba had let go her anchor, but before the line between her and the City of Birmingham was let go, the latter;steamship came into collision with the British steamship Gordon Castle, riding at.anchor. * * * Both vessels suffered greatly. 421 Regarding this, the court say (p. 19!19-200): In the evidence taken in the case items of (lanage caused by the collision of the salving vessel with the Gordon (Castle appear. The court below alludes to a part of the expense incurred by the C(it! of Birmingli(gh(a, but il its findings it gives a lump sum without discussing this collision or the responsibility of tle salved vessel therefor, or stating whether it includes these damages ainong the explenses. We approve the sumi found, )bt v'e.express.oo opinion,m thiis poit. Indeed, the recordl loes not disclose to what extent the towage of the Akaba,) contributed to tlie collision. That the court saw fit to call attention to the fact that it did niot pass upon this point, and to explain that it could not do so on account of the condition of thle record in that case, is an admonition, if not an instruction, that an iteml of damnage so arisingo is at least doubtful even in sa'lvage cases. If I have mlade mny views understood it.will be seenl that they limit the discretion of the Quartelrmastel-Gelneral to that exercise(l by him in accepting or rejecting bids when actual competition is mll:ade, eliminating fronm consideration the special features which increase the conpensation,by adding a reward, and also the indirect damlages alleged.a The views set fortl in the foregoing report were lapp)roved 1) the Secretary of Watr, and the Qualteirnaste matr-Gene.ratl was instructed to settle said clail pursuant thereto. aThis matter being referred to tllhe C(opl,ltroller of the Treasury, lie letermined it as follows: 'As the transport McfiPherson was in the possession of the United States at tlhe time the services were rendered, it is well settled that the vessel can not be libeled in an admiralty court to sustain or enforce the claimi, for salvage. This claim, therefore, must be considered, if at all, as one arising undler an agreement in tlhe nature of a contract in which everything was agreed to between tlhe parties excel)t as to the amount of comp() ensation. "'While there is no written contract, as required by section 3744, Revise(l Statutes, yet as the agreemient has 1)een executed thle claimant is clearly entitled to a reasonable compensation for tlhe services rendiered. "In. the very able opinion of Judge 3Magoon, law officer, Division of Insular Affairs, War Department, lie says: "'In order to iave its claim consi(lered by the War )ep)artment it is necessary for the steamship company to take thle position that it was a contractor, acting in pursuance of an existing contract to perform the services for the M.l'cPersoo). This being true, not only does the company cease to b)e considere(l a salvor, but it also eliminates fronm consideration the special features which give the services a salvage character, such as gallantry, skill, courage, promptitude, peril to life and property by which the service was accomplished. These are imiportant matters to be considered in fixing the reward given to salvors, but are not considered in paying contractors for complying with their contracts. Contractors are not rrieardeld; they are paid.' " The opinion also clearly sets forth the principles to be applied in determining what the reasonable value of the services has been. The simple question then is, What were the services worthl to the steamship ldmOiral Saampsoin? What would reasonable and fair-minded men have charged for said services under all the circumstances of the case, applying the principles set forth by Judge Magoon?" (7 Dec. Comp. of Treas., 365, 366.) 422 THE SALARY OF THE GOVERNOR-GENERAL OF CUBA AND ITS PAYMENT OUT OF THE REVENUES OF CUBA. The gentleman who is the governor-general of Cuba is an officer in the United States Army. lie is discharging the duties of two separate and distinct offices ---the one military and the other civil. One office is that of a major-general in the United States Army; the other is that of the head of the government of civil affairs in the island of Cuba. As a jnajor-general of the Army lie is in command of the military forces of the United States stationed in Cuba. This force consists of 443 officers and 9,152 men, making a force of 9,595 mennearly one-half the size of the Regular Army at the time the pay of officers was fixed by Congress. These troops are stationed at various points throughout the island. It is doing Major-General Wood scant justice to say that in the discharge of his military duties connected with this military establishment he is earning his pay as an officer in the United States Army. As the head of the government of civil affairs in the island of Cuba he is discharging a multitude of duties-arising in the administration of all departments of civil government in the island. In the conduct of the military affairs committed to his charge and keeping he renders service to the United States. In the conduct of the affairs of civil government committed to his charge and keeping he renders service to the people of Cuba. The conduct of the affairs of civil government are not the ordinary duties of an officer of the United States Army as specially defined by the laws creating and regulating the military establishment of the United States. On the contrary, the performance of such service by an officer of our Army is toleratc(d, not rc;qird/, and must be justified Iby necessity. "TIe is no friend to the Republic who advocates the contrary." (Dow v. Johnson, 100 U. S., 153, 16{9.) Being outside of the duties prescribed for a major-general by the law creating his office, the performance of said duties would be extra services, for which he would be entitled to extra compensation in the absence of positive legislation prohibiting such paymennt. In Gratiot v. United States (15 Peters, 370, 371) the United States Supreme Court say: It is not sufficient to establish that these items ought to be rejected, that there is no positive law which expressly provides for cr fixes such allowances. There are many authorities conferred on the different departmlents of the Government which for their due execution require services and duties to be performed which are not strictly appertaining to or devolved upon any particular officers or which require agencies of a special discretionary nature. In such cases the department charged with the execution of the particular authority, business, or duty has always been deemed, incidentally, to possess the right to employ the proper persons to perform 423 the same as the appropriate means to carry into effect the required end; and also the right, when the service or duty is an extra service or duty, to allow the persons so employed a suitable compensation. This doctrine is not new in this court, but it was fully expounded in the cases of The lUnited States r. McDaniel, 7 Peters, 1; The United States r. Ripley, 7 Peters, 16; and The United States r. Fillelrown, 7 Peters, 28. But it is said that section 1269, Revised Statutes of the United States, prohibits the payment of compensation for services of the kind and character now being performed b1)y the head of the government of civil affairs in Cuba. I can not aLgree to this proposition. Section 1269 is as follows: No allowances shall b)e imade to officers in addlition to their pay except as hereinafter provided. (U. S. Rev. Stat., p. 220.) What was the purpose of this enactment? Was it intended to limit the income of the officers of our Army' from all sources whatsoever to the amount fixed 1)v- law as their pay? If an officer in the Army were to write a book on his military experiences, would he violate the law if he sold it to a publisher or the general public Does this statute prohibit hill from increasing his income? If so, it is a palpable invasion of the rights of man, for a soldier is a man, and b1) entering the military service surrenders only a portion of his civil rights. Manifestly the purpose of this enactment is to limit the amount which an army officer may draw from the Treasury of the United States or the mon1ey appropriated from the United States Treasury for the support of the Army. As such( it is a wise and useful provision, for it enables Congress to fix the amount to be appropriated, prevents the recurrence of annual deficits, and results in a saving to this Government. If such a purpose were not palpable, additional evidence is to be found in the fact that the provisions of section 1269 were created by an act approved July 15-, 1870) (see marginal note to sec. 1269), which act was entitledAn act making appropriations for the support of the Arlltmy for thle year ending June 30, 1871, and other plurposes. (16 U. S. Stats., p. 315.) Section 1269 is a continuation of a provision of section 24 of said act. (See note to sec. 12(69.) Said section 24 fixes the amount of pay of the various officers of the Army and then provides as follows: And these sums shall be in full of all commutation of quarters, fuel, forage, servants' wages and clothing, longevity rations, and all allowances of every name and nature whatever, and shall be paild monthly by the paymaster. (16 Stats., p. 315.) Plainly the inhibition relates exclusively to the funds of the United States in the hands of the paymasters-that is to say, the money appropriated )y- Congress for the support of the Army. Are the funds created by the revenues now being collected 1)- the 42d4 government of civil affairs inl Cuba furids belonging to the United States Certainly they are not. These revenues are collected by the existing government Of Cuba for the purpose of def raying the expenses of maintaining- said government. They are in no sense military contribtitions or requisitions demanded by at successful invader for the use, and benefit of the treasury of his own government. The Brussels, Project of an International D~eclarationm Concerning the Laws and Customs of WVar provides as follows: AitrTICLE 5. The army of occupation shlall omilv levy suchl taxes, dules, duties, and tolls as are alreadly estalblishedl for the benefit of the State or their equivalenit., if it be impossible to collect theml, and this shall 1)e done, as far as possib~le, inl the form of, and accordling to, existing piractice. It shall devote them to defraying the expenses,.of tile adminjlistration of time count~r to tile same extent as wa~s obligatory on tile lega~l gn(overnl Ient. Lieber's Instructions for the(' Gover'lnment of Armies of the 'United States in the Field (G. 0., 100, A. GJ. 0., 18683) 1)rovides as follows: 10. Martial law affects cimieflv tile police amlil (collection (If public revenuies and( taxes, whether impos()e(l ily tile expelled governmlfent or by tile invader.* * (Sec. I, Par1 10.) 9. Tile salaries e.f (ivii officers (If tile hostile goverlimenet. who( remlaill ill tile inlvadledl territory amnd continiue the wo&k of tileir offices anid can continue it accordiilng toQ tile circumlstanlce arisinlg ollt of tile war-suich as judges, admlinistrative or p~olice officers, officers of thle city or comlmlunlal governmemlts-are p)aidl from the P)0l)lie revenue, of tile inlvadled territory until the mlilitary government ihas reason wholly or p)artially to dlis-continue it. (Sec. 2, par. 91. If such revenues clan lbe prLoperly used to pa for services rendered by enemie(s, is it ta mlisapplropriationl to use them to pay for similar services renideredi by those wvho are, not enemlies The case of Comiverse ie.. United Staites (21 How., 463) seenis to be directly iii poinit on the. question inlvolved ini this discussion. rhat case arose as followvs: Philip (jreely, jr., was collectLor of custonis at Boston. After his death the United States brought suit, agrainst his estate. James C. Converse,1 the alininistrator of thes esttate, plea-ded certain itenis of set-off amounting) to $17,684.920 as comminissions due, him fromt the United States upon certain contracts, purchases, andI disbursements made by him for oil and othertarticles for the Lig-ht-HoLuse Service of the United States, under direction of the Secretlary of the Treasury. No O6bjection.wa made that said amiount was miot the pmoper' commission if the defendamit wats entitled to atny; but the United States coimtended that the defendant had no rightful claim fo~i said, comnmmssions, since it was conceded that being collector of customs, and, as such, having received the compensation fixed by law, to wit, $6,000 and $400 additional, each year, hie, was prohibited by the statutes from receiving anything more. This contention was sustained by the United States circuit 425 court, but upon aippeal to the, United States Supreme Court the ease was reversed. The provision of law upon which the G'overnment rested its contention was as follows: -No collector, surveyor, or naval ofticer shiall ever receives more than $;400 annually exclusive of his Colnlensatiou as collector, surveyor, or naval officer, anid the hiues and forfeitures allowedl bv law for any service hie may renider in any other othece or caj)acity. (Sec. 15, act 1822, 3 Stats., 696.) This provision wa-s, substantially reenactedi prior to the service iperformied by the, (defendant, ini the following acts: 18,39.0 3 Sta~t., 439; 1841,.5 Stat., 432; 1842, 5 Stat., 510); 1845, 5 Stat.. 736); 1848, 9 Statt., 29f)7; 1849, 9 Stat., 365), 367; 18-50, 9 Stat., 504, 542, 543; 1851,(9 Stat., 629; 1852 10 Stat., 97, 100; 18,52), 10 Stat., 119, 120. In passing upon the cast,.e the Supreme Court (considered and conis~trued these various laws on the same sub~ject-matter~ in connection with each other. In the opinion the court say (21 How., 467'- et seq.): It wNould extend~ this op~inionl to an umlreasonalble lenigthi to qutote at lar~ge thie lang"uag10e of the various acts aid prvssabove vientionied; nor indeed1 (10 we (leern it niecessary, becauise the object and policy of this whole legislation, when taken tdg-ethier, wNill be madle ev-iolent byv looking(, to the statte of the law before, andl at the time. the, different laws were 1)ass1-edl, anmd the (lefects which thien existed, and which. tlhev were iiitendled to reiiiedv. A plarticuilar reference to a few of them, in clhronological order, will be suflicient for this purp~ose, and we shiall refer to tho..se which. have been mainly relied on by the circuiit, court, or bNv the (counsel for the Vnited S-tates, in ordler to suipl)ort the judgment, of the courtblw The first law upomi this suibject is the, act ( f ay7,1822" section 15,-\wNhich provides, that ''No collector, surveyor, or niaval ofhicer,hall ever receiv-e muorel than $400 amiu.allv~ exclusive of his conml)ensation as- coll1ector, surveyor, or naval otlicer, and the fines and forfeitures,, allowed by law for any service lie, imay rendler ii n terolc or capi1(citv. At the time this law was p~assed the collectors, surveNyors, amiol niaval ofliceris wNere, in ceitain contingencies niemitionedI ini the act of MTNarch 2, 1 I799, reqluiredl to (10 the (luties of the offices of e_,ach other; auid, without anyv sl)eciald law ulpon the subject, it was thie settled plractice and usage of the Giovernmient t~o requiire collectors to superintend lighits andl lighlt-houises, ill their reslpective dlistricts, and to disburse mioney for marinie hospitals and thme Revenuie-C'utter Service, for whichi, by the, practicl- and regulations of the Treasury De)eartmnent, they were allowed certain comm-1iassionls. But there was 110 act of Coiigre~s inolt)oing these (luties on thle collector or fixing his commnissions for these services an(1 disbursemnents. They were charged as extra services-that is, as not belonging to tile officer of collector-an(1 thle amount of his coni1pensation depended altogether upon the discretion of the Secretary of the Treasuirv for the time being. These extra allowances 1i1 somel imlstanlces amnounted to very large sumis, and it appears that the at~teiition of Congress was at length. attracted to this subject) anol it wias, deemned right and imore consistent with the nature and character of our institutiolls to fix by law the compensation for these services, and not leave it in every ease to (lepen uol 1)1 the discretion of the Secretary, and the act of 1822 was accordingly passed for that purpose and for that purpose only. The language is clear, precise, and appropriate, amnd no multiplication of words could more plaimlly indicate its object. The words "any other office" were evidently used. 426 with reference to the contingencies in which one of these officers might be required to perform the duties imposed by law on one of the others. And the words " or other capacity" were equally essential, in order to embrace the extra allowances made for the agency of which we have spoken, as they were not the duties of an office created by law, but a mere agency of one of the departments of the Government. The law does not forbid compensation for extra services which have no affinity or connection with the duties of the office lie holds. On the contrary, it recognizes his right and gives the collector or other of these revenue officers an additional sum, over and above their salaries as officers, for extra services rendered as agents, which hlad no legal connection with their respective offices. The duties for which this certain compensation was fixed were well known in the usages and practice of the Government, and Congress could therefore act advisedly and with knowledge, and judge what amount of money would be a fair compensation. But it will hardly be suppose(l that Congress, 1) this law, intended to fix this amount for every unforeseen and possible service, or the duties of every possible office which one of these revenue officers should be directe(d or requested by the Secretary in some emergency to fill, for, as Congress could not foresee what might be the character and importance of such a duty, there was no basis on which a judgiment of its value could be formed. Nor (can it be supposed that they intended to regulate in advance its compensation or value without some data to act upon. Besides, no other salaried officer is mentioned in this law but collectors, surveyors, and naval officers, and it would hardly l)e just to the legislative body to impute to it the design of dealing more harshly with these revenue officers than any other officers of the Government who have certain salaries, or to suppose they would deny to them compensation in cases where every other salaried officer was allowed to claim and receive it. We have dwelt more particularly on this act of Congress, bIecause the principles and policy on which it was t)assed form the basis of all the subsequent legislation on this subject, and will be found, with some modlification, in every law. The great object has been to establish, by law, the compensation for public services, whether in offices or agencies, where the nature and character of the duties to be performed were sufficiently known and definite to enable Congress to form an estimate of its value, and not leave it to the discretion of the head of an executive department. After this act of 1822 there is no act of Congress bearing upon the question until 1839. In the meantime, about the year 1833, and subsequently to that time, several cases came before the Supreme Court, in which officers who were not nanmed in the act of 1822, but who received a fixed salary as a clerk in a department, or a fixed colmpensation as an officer in the Armyl, or in some other office, claimed the right to set off against the United States compensation for extra services unl(ertaken by the direction of the Secretary, and for which there was no fixed compensation 1)by law. And in these cases this court held that such compensation might be claimed and set off under the act of Congress allowing set-offs against the Unitedt States; and that, where the extra service had l)een require(d by thle head of the proper d(epartment, the officer was entitled to a reasonable compensation, to be allowed by the jury upon the evidence, even if there was no law expressly requiring the service or fixing compensation for it; and tllat it might be ascertained and allowed by the jury in proper cases, under the direction of the court, even if the lhead of the deplartment had fixed no compensation, and refused to allow the claim. Under these decisions, claims of this description were frequently made, an(l the United States involved in inconvenient controversies in court. These controversies again attracted the attention of Congress to the subject of compensation for extra services, and in 1839 they passed an act embracing all persons holding office with a fixed salary precisely similar in its principles with the act in relation to customhouse officers-that is to say, they took away from the heads of departments and 427 frorm courts and juries the right to fix the compensation in any case, where it. was not fixed by law; and if there was no law ascertaining the comlpensation or allowance for the particular service the party wNas entitled to none. It carries out the plrinciple and policy of the act of 1822, an(1 provides that there shiall be no compensation in addition to the salary, 'unless sai(1 extra allowance or coinpensation be authorized by law.' Nor (loes the act of August 23), 1842 (5 Stat., 510), go further than the act of 18139, except only in (leclaringy that, in order to entitle the party to lemnan(1 compensantion, it must not only be fixedt by law butt that the law appropriating it shall explicitly set forth that it. is for suich. additional pay, ex-tr-aallowance, or compensation. Now, these words, added to the, provisions in the act of 1839, only showv that. the Legislature contemiplated (hlties iimnpose1 iby superior auithority upon the o_-fficer as a ilart of his duty, and wNhich the sullerior auithority had in the emergency a right to impose, and the officer was ilound to obev, although they% were extra and adlditional to what had previously been require(1. l"int, they can byv no fair interpretation lbe held to emlbrace anl emnployment which has imo affinity or (connection, either in its character,or by lawv or usagle, with. the line of his official (ltvy and where the service to be perforumed is of a (lifferent character anil for a (lifferent lplace, and the amiount of compensation regulated by law. This provision is introdluce(1 in the annual appropriation law for the support, of the Army an(1 Military Academy. And,although the words are general, and undouibtedly include officers in every branch of the public. service, yet, f romn the general charact~er and1 objects of this lawe, it is manifest. that the attention of Congress imust have been mainly (lirectedl to officers in the military service who, from the lposition in which unforeseen events often Illace them, are called1 111o0 and reqluired to perform duties not specified by law or regulation, but. -which grow outt of andl are associatedl with. military service. We pass onl to the acts of 1848 and 1849, which are the more important because they were Ilassed about the time this collector (cane, into office andl apply p)articularly to tue revenue officers of whmich we are speaking. The clauses which bear upon this question in each of timese laws is inscribed iii time aimnual (civil ammil diplomatic approlpriationi law by way of proviso to the clatise making appropriations to time maintenance of tile Lighlt-House Service. Tile act of 1848 aJ)propriates $:I11,640.35, being a comnmnission of 2-1 per cent onl time whmole amount appropriate(1 for that. service, with. a proviso that no part of the sumt there.)y\ appropriate(1 should1 be paid to ammy. 11crson who received a salary as aml officer (Ioh utmadta rm anil after the 1st dav (If July, 184-9, the (lisli-lrsemmemlts simould be mmalle by tlmc collector of time customs withtiot, complens-atioml. Amll if this law still reimainel in force it. is very clear tlmat. the agency of whlich we are speakimng wvould lmot have bleen authorized by law, amid the set-off claimned by the 1llaimmtiff in error (0o1(1 mnot be allowed. But tilis proviso in tileact. (f 1848 is recitcel at large in time appropriation of 1849, an(1 repealed withlout amnv savimmg or qIumalificatiomi; ammll timis replealimmg clause ms inmmnediately lprecedell 1 y anl applropriationI for sll1erimltc~~emlts' comnmissiomns of $1 1,~673.25, beimmg, 21 lper cemlt 011 the whole anmount,appropriated for light-hous~e purposes. There, is 11o restriction in these commmmissions- imn melation to revenue officers. The comnilissions are, to be p~aid omi time whole ammount, witiloilt amny reference to the person or officer who performus tile service; comlse(lnemltlv, under thimgislaw, time revenule officer who 1)erformlmed tllis (Intty withimn his own dlistrict was emltit~le(1 to 21 per cent commission onl the ammount (lisllursedl, amnd previouis acts (If Comigress restrictimng this allowance -were repugnant to this law and( thereby repealed. Time repeal. (If tile act of 1848 could not, upon amny souml( 1)rincihlle of law, revive any\ previous act wilich was repilgiant to time lprovisions containe(1 imi the repealimig act of 1849. And t~his act allowed tile comlmnission (If 21 per cemmt in all cases, and appropriated tlle mooney to pay it evn tt h ertr fteTreasury to select, as agent. each 428 collector for his collection district, er any other agent tlat lie might deelm more suitable for the trust. The act of September 28, 1850, however, restored the provisions contained in tle first act referred to-that is, the act of 1822-and provides that no collector shall reeeive for his services as superintendent of light-houses over the sum of $400 per annum. But this act was followed by tile civil and diplomatic appropriation law, passed at the same session, September 30, 1850, only two days after the law above mentioned, in which the compensation is again modified in amount, and collectors whose salary exceeds $2,500 can receive no compnensation as superintendent of lights or disbursing agent. Yet tlis law, like the preceding approlriation laws, apI)propriates a suin equal to 21 per cent (omIlnission upon the whole amount app)Irop)riated for Light-lIouse Service, andl the Secretary might tlierefore employ any agent he pleased, andl if lie was inot tlhe collector lie woull b)e entitled to fill coimmissions. The same provisions are contained in tile appropriation acts of 1851 (9 Stat., 608), 1852 (10 Stat., 86), andl 1853 (10 Stat., 200). It will be seen froml tllis history of the conmplicated legislation on this sul)ject tllat however varyingl tlIe provisions miay l oe in some particulars they are yet all founded on the principles adll policy of tle acts of 1822 and 1839, and tllat all of the I)rovisos respecting the comlllllissilms to a revenue officer are confine(l to his collection district and its extra custolary (duties therein as agent. The just and fair inference froll these acts of Congress taken together is that no ldiscretion ij left to tlhe head of a d(epartnient to allow an officer who lhas a fixed conlpensation any credit beyondl hlis salary, unless the service lie lias i)erformedl is requiired by existing laws and tlhe remunleration for them fixed by law. It was undioubte(dly witllin the power of the )epartmient to or(ler tlis collector, and every other collector in the Union, to pIurcllase tle articles required for light-house purposes in their respective districts, and to miake tlle necessary disbursements therefor. And for such services lie woulld 1e entitled to no compensation beyond his salary as collector, if that salary exceeded $2,500. But the Secretary was not ),oulnd to intrust this service to tle several collectors. Ie llad a right, if lle suIpposed( the public interest required it, to have the whole service performledl by a single agemlt; for while the law authorizes himl to exact this service from the several collectors, it at thle satme timie evidently authorizes himl to commit the whole to an agent or agents other than the collectors, by regulating the commission which an agent shall receive, and appropriating mnoney for paymiieiit of commissions of 2-I per cent upon the whole amount authorized to be expended in this service. And as the collectors would by law be entitled in some cases to nothing, and in others to the small suIII above mnentioned, if tlhe service was perfolnm (d by them in tleir respective districts, it is very clear, froii the commissions allowed, and the appropriation to pay tlhemn, that lie was at liberty to enmploy a different agency, ainl pay tle (commissions given by the law whenever lie supposed the public woull be better servedl by this arrangenient. And the case as assumed in the record is precisely that case. The Secretary has no right under the laws upon this subject to order this or any other collector to perform this lduty for all the light-house and collection districts. The law has divided it among tlhem, and the Executive Department la(d no right to impiose it upon one. But he had a right, as we have said, to employ al agent insteadl of the collector or collectors of the several districts; and if lie did emnploy one, the law fixed the compensation and approl)riated the money to pay it. lie was not forbidden to employ a revenue officer for this purpose; and, so far as his services were performned( for other districts, he stood in the salme relation to: the Government as any other agent. The law forbidding conipensation, or reducing it to a small amount, did not apply to this service. The agency was entirely foreign to his official duties, and far beyond the limits of the district to which the law confined his official duties and power. And 429 ais the IDepartment alppointedl him to lperfor~ii a (luty required 1y law, for which the coiipensatioin was fixed ily law, and the money appropriated to pay it, lie, is entitledl to the compensation given by law, if lie has performed the, hIlty, for the Secretary has no n-or,, discretionary power to withhold what the lawv gives thlian lie has to give what. the law (le)es not authorize. The agency and services lperformied in thiis,, instanice ha"d 110 iure couliiection with his, o)fficial (Ilties andl position than the puircuiase, of a supply of shoes for the troolps Iii 'Mexic) hin the late war woul~d have been iil the as eu-ice, of anyi other person authorized to iiake sichI a, plrchiase. And if &.uch a duty was reqiuested(1 or required o)f bino 1y the licad(l If the proper departmient anid Iperiorimel, nobody wvouldl (denv his righit to (copnipisatioii, if the Law authorized anld reqluiredl the service to lbe d Inc and fixed the coiiipeils~atilin for it. lpoiifthe caise therefore, as the' plaintiff iii error offerell to prove it, we tlhink the court erred inl refusing to admii t thie testilmony lVndoiibtedl y Congress,- hiave thie power to prohibit. the Secretary fro.m (leiiaiidlin( orreeivii (If apuillic ofhicer ayservice in aiii- othe- o)ffice or capacity, aill to proluil it. t le same person fromi accepting or excifit. tiis(If aiy a;iiyfor the (hivmernment, (If aiiv desvriptilln, while lie is hi oflice, aili( tol leiiv coillpeius-atioui,altogether if the Allicer chooses to. juerforin the services; I)r they may require an officer holding- anl office with a certain salary, however ~:inAl1, to IpIerformu any (bity directed 1wA the head of the Department, however onerous o)r hazardous, without,addlitiomnal comiipeinsatioin. lnt t lie legislative dcp'irtmieiit- If the G( overnmienit have never actell ul)0n sch~l prin-cip~les; nor is there anv~ law -which losto such a policy\, or to such unlhimited pbower ini the hlead of anl execuitive (Iehla~rtileit o)ver its subordiinate othecers. An illutir;iatl(io occ,~urs to inc wvhich1. think- fairlv exhibits the extent of the prohib~ition o)f section 1269, Revised Statutes. It has been tim customl for' many years to detail officers; ofth(le Armny to sewrve as miliitarv instructors at various edticationial institutionIs. (Sec. 1225, Rev. Stats.) In1 many111 in1stances such institutions were agricultural colicoes (lirectlvA endo-wed with land or-anits friont the 1iederal (1over11neneit. upon condition that they afford imrstruction in iii1 itar siece S ppose a he detailed to teach milhtarv tiactic: at one of these institutions sees lit to arrange with the collegre authori ties to acet a1~ La tutor in some, other study-history, mathematics, o)r chemnistr-y. Ilie cert~ainly could not receive compensation front the. Treasury of the United States for such additional service, b)ut does section 1269 prevent him from lawfully receiving compensation from the college? Section 1'260, United States Revised Statutes, provides as, follows: Anv retiredl officer may, on his oIwn appllication, lbe detailed too serve as lprofessor iii aiiy college. But while so serving, such officer shall be allowedl 10 additional compensationi. Does this section require that said officer so detailed must donate his services to the college? Can not he receiv~e pay froni the college as any other professor in the institution does? Attorney-Greneral Cushing said: There is no provision in the Constitution or of aiiy statute which forbids the performiance, of the duty of two distinct offices by the same lperson. The va rious provisions of law forbidding extra allowance or additional pay for extra service imply extra service, pay, or allowance in the same office, not distinct service in distinct offices. (8 Op. A. GC., 325; see also 5 Op. A. G., 7165; 6 Id. 80 and 583.) 430 That the allowance of extra compensation to persons holding office under our Government is not contrary to the Constitution or theory of our Government is expressly recognized by Congress in numerous acts throughout our history, for the various acts prohibiting such extra compensation limit such prohibition by the words "unless expressly authorized by law." (See secs. 1763 and 1764, U. S. Rev. Stats.) Or by the following language appearing in the act of May 1, 1876: Unless the same is authorized by law atnd the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation. (19 Stat., 45.) If "extra compensation" were opposed to the Constitution, the fundamental principles or the theory of our Government, it could not be authorized by Congressional enactment or legalized by an appropriation therefor. To what law do we look in determining what action is authorized in Cuba?' International law. That law not, only "authorizes," it requires that the military commanders of a force which has driven out the previous government should assume and discharge the administration of civil affairs, and devote the revenues of the country to that purlpose. Who makes the appropriation or distribution of the revenues for the accomlllislhment of that purpose? Clearly the conmmander in chief of the occupying altrmy. This is not the first Congress which has considered the propositions now before us. I)uring the war with Mexico, and afterwards, President Polk exercised the right of distril)uting or appropriating the funds lelived from the customs revenues of the country occupied by our armlies. The money so secured was collected as military contributiolns or requisitions. It was seized as legitimate spoil of war, and held and intended for the use and benefit of the United States. In this respect it differed fronl the funds derived from the revenues being collected in Cuba, which are created, collected, and used for the use and benefit of the island itself. Although the money secured by ourl military forces in the war with Mexico was money belonging to the United States, it was not converted into the Treasury of the United States, and President Polk used it, as his discretion determined, "toward defraying the expenses of the war,"' among which was included additional compensation to the officers of the Army performing services as civil officials. The authority of President Polk to dispose of the funds so collected was challenged in Congress. (Congressional Globe, vol. 20, p. 57, Dec. 18, 1848.) The matter was referred to a select committee, who submitted a majority report denying such authority in the President and a minority report sustaining the course pursued by President Polk. (See 431 Reports of Committees, 2d sess., 30th Cong. (1848-49), Report No. 119; see Message Pres. Polk to Cong., Jan. 2, 1849; Richardson's Comp., vol. 4, p. 672; see Discussion of Message, 20 Cong. Globe, p. 148 et seq.) The course pursued by President Polk was finally sustained by Congress by the passage of an act approved March 3, 1849, entitled "An act to provide for the settlement of the accounts of public officers and others who may have received moneys arising from military contributions or otherwise in Mexico." (9 Stats., 412.) It must not be forgotten that the moneys disbursed by order of President Polk belonged to the United States:, and the officers who had received and disbursed the same were required to account therefor to the Treasury Department. Hence the necessity for the aboveentitled act. In the instance with which we have to deal, the moneys do not belong to the United States. Section 2 of the act above referred to is as follows (9 Stats., 413): SEc. 2. Aild be itf.irtler ec((te(d, That where an officer has ha(I tlhe supervision of the collection of the military contributions at any of thle ports in Mexico, and has at tlhe same time exercised civil functions unler tile temporary governIment tihere established, or where an- officer (o.r other person shall have performed thle duties of collectors at such ports, such( officer or persoin shall b)e allowed a comnpensatio)n which shall be assimilated in amount, as nearly as inmay be, including tle regular pay and(l emoluments of such officer, to that allowe(l )by existing laws to officers of thle custolms in the United States whlere the services are simlilar in atmotuit and imllportance, such allowance, in all cases to be (letermine(l Lby the Presi(lent of the United States. And all officers of tlie Armly an(li other persons in public employment wlho have received payment for their services in collecting, keeping, or accounting for sai(l moneys, and for other necessary services, are authorized to retain so munch of thle amlIount so received as in the opinion of the President of tle Unitel States nmay be a fair coinmpensation for said services. TIHE STATUTE P'ROHIBITIN(G OFFICEIRS OF THE ARMY FROM HIOL)ING CIVIL OFFICES. Section 1222, United States Revised Statutes, prolvides as follows: No officer of the Army on the active list slhall lold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be therelby vacated. This provision is intended to prevent officers of the military branch of the Government of the United States fronm holding office in the civil branch of the Government of the United States. It would be absurd to contend that it prevented an officer of the Army from complying with the law and usages of civilized -vwarfare which require him to assume and discharge the duties of a civil officer in territory subject to military government. The officer who fills the position under military government does not exercise his own judgment or volition in 48 2. assuming it, buHt simply obeys the order of the commander inl chief requiring him so to do. In conctinsion., allow me to diirect attention to the fact that it is not contended herein that Congress may not regrulate the iniliitary establishment of the United States. Such laws as Conm-ress, may enact in regardl to such military estatbhshnient tare binding upon the commander inl chief and the officers and mnen conipo-sing such establishment, whether they are at home or alroad. But there is a distinction, 1)lainl and b)road, b~etween the military establishment of the U'nited States and the government of Civil affairs in the island of Cuba. APPLICATION OF THE PURCHASERS OF THE SAN JUAN AND RIO PIEDRAS TRAMWAY FOR CONFIRMATION OF SALE AND TRANSFER OF CONCESSION, AND FOR CERTAIN PRIVILEGES DESIRED UPON COMPLETION OF TRANSFER. [,Submitted January 26, 1900. Case 'No. 17, D)ivisioni of Insular Affairs, War IDepartmenet. Sii: 1 have the hionor to submiit the followingo report Onl thme application of J. G.'. White &- Co.. I'lhilip H1. MecMillan, S. Gilbert Av-erell. Frederic 13. ~Jennings, IV. 11.- Pot 1trpR Bcn n rmo IL. Park, 1w their attorneys, Curtisl MAbllet-Prev-ost &- Colt, reg~trdini~) a number of matters relating to time San Juan -and Rio Piedra —s TrainW~a, in IPorto Rico, and anl adjunct organization known as, the San ~Juan. Light and Transit Company. The application includes a number of matters of such chiaracter as to require separate examination. These matters have b~eenm presented at different times by la serieis of requests, all of which relate to tile sanie general Oibject or Project. CONFIRM.NATION OF THE SALE ANT) TRANSFER OF THlE CONCESSION AND TRAMWAY TO THlE AIPPLICANNTS. On February 16J, 1878, the Crown of Spain granted a royal order authorizing Pablo Ubarri to build a tranmwav fromt Sail Juan to Rio Piedras, Porto Rico. (Gazette of Mlarch 14, 18 78.) The (conditiomis iulposed by said royal order appear to have been complied with and the road thereaf ter constructed and operated (lowil to the preseilt tille. The rights, created by said concession and appertaining thereto were made the subject of a contract om. sale to certain citizens of the United States, and the parties thereto applied to General Brooke, then in comnland of the mlilitary department of Porto Rico, for confirmation of the sale. Upon this matter General Davis, in his report hereon, says (Doe. 32, pp. 3 and 4, Ins. Div.): The property with ail its easements was sold by MNr. Ubarri on November 22, 1898, to William H. Thitchener, who represented an American syndicate. Tile sale 433 appears to have been in every way legal and a transfer of title was effected thereby. General Brooke was military governor at the time, and he was asked to confirm the sale, also to grant authority to change the motive power to electricity and to widen the gauge. There is no record of the action of General Brooke in this Department. The question of approving the transfer was referred to the secretary of justice for the department of Porto Rico, who reported thereon as follows (Doc. 23, Ins. Div.): Hon. MAJOR-GENERAL CO()MMANT)IN( TIHE DEI'ARTMIENT: In the matter referredl to in acconmpanying coim:,unication anent the transfer of concession of the tram\-wa between the capital an(d Rio Pielras, I have the honor to inform you that the central station of sai(l traminw-ay and a portioni of its track as far as the San Antonio channel or (reek, as also that I illg in the neighborhood of Martin Pefia channel, are built, according to my informalltion, uI)po (Governmlent ground(s, most of which correspond to tlose of tle ol( " militairy zone." Througtl a gratuitous concession of the plrecedlinig governiient, tile grantee of tile tramway was pernlitted to )build tlhe station andl track upon sai(l grounds, but without transferring the title and possession tlhereof, same being reserve-d l y the Goverlnment. All these lots are very valuable, alnd were a)l)raised at a higlh price ulder the pIrevious rdgime. I must also call your attention to tlhe fact tliat another portion of the track is laid over lots belonging to residents of Santurce, wlho l)ermitted( the grantee to lay his track without giving up their title to the lands. Upon your al)I)roval of the transfer, as requtested, it should lIe accompanied with a clause to the effect that saidl approval is given without (letrimlenlt or implairment of the rights of ownersliip belonging to tle 'United States over the military and Ipublic lands occupied bly tile station an(l tracks of the tramway. Yours, respectfully, JIAN ITERNtAND)EZ LOPEZ. Whether or not the restrictions of the Spanish law requiring the assent of the Government to transfers of franchises and similar property are to le now enforced in Porto Rico, or shall be considered as obsolete and superseded by the Amlerican doctrine, that the right of alienation is appurtenant to ownership, is an administrative question, to be determined by the Secretary of War as an administrative officer. The recommendation of the secretary of justice, Sefior Lopez, that the approval of the transfer "'should be accomlpanied w\ith a clause to the effect that said approval is given without detriment or ilmpairment of the rights of ownership belonging to the United States over the military and public lands occupie(d by the station and tracks of the tramway," suggests a not improper precautionary measure to avoid possible misconception, but it is not essential to the preservation of the property rights of the United States in and to the land the proprietary rights of which were held )by the Crown of Spain and passed therefrom to the United States. Upon the acquisition of title by the United States, the property rights therein could only be alienated by Congress or by an officer of the Government authorized by Congress to make such alienation. In his opinion on the application of Weeks 1394-03 28 434 et al. for permission to construct a wharf at Ponce, Porto Rico, the honorable the Attorney-General, says (letter July 26, 1899): I (lo not know of any right or power which the Secretary of War or the President has to alienate in perpetuity any of the pulblic domain of the United States, except in accordance with acts of Congress duly passed with reference thereto. There is no legislation by Congress made for or properly applicable to the public domain in Porto Rico. The power to dispose permanently of the public lands and public property in Porto Rico rests in Congress, and, in the absence of a statute conferring such power, can not be exercised by the executive department of the Government. (22 Op. 545.) I'RIVIL:EG ES DESIREDI) UPON COMPLETION OF TRANSFER. The American investors, after acquiring, as they understood, the rights conferred by the concession for said tramway, organized a corporation under the laws of New York, to be known as the San Juan Light and Transit Company, which said corpo'ration was to take over said concession and operate said tramway, using electricity as a motive power and also to distribute and sell electricity for light anld other commnercial purposes in San Juan. To accomplish these purposes application is made on behalf of the San Juan and Rio Piedras Tramway for the following privileges: 1. To change the motive power of the tramway to electricity. 2. To change the gauge of the road. 3. To extend said road through and upon certain streets of San Juan for a distance of about 1,500 feet, so as to form a loop. 4. To construct, maintain, and operate a branch line or spur on a portion of the property of the United States constituting the harbor front in San Juan. 5. To construct, maintain, and operate a branch line or spur, about 1,000 meters long, to reach a certain cocoanut grove on the beach near Sain Juan and frequented as a pleasure resort. 6. To purchase or lease from the United States 1 acre of ground, situate near San Antonio Bridge, upon which to erect an electric light and power plant. 7. In case a site for said proposed power house can not be secured from the United States, permission is sought to construct, maintain, and operate a branch line in Santurce to reach a site for the proposed power house in that locality. The application contains requests for certain other privileges, but the requests are not pressed and are considered as abandoned. Since they are referred to and reported on in the documents herein, it may be well to avoid possible confusion by stating that said requests are as follows: 8. To extend the railroad fronm Rio Piedras to Caguas. 9. To extend the railroad from Rio Piedras to Carolinas. 10. To build a new line connecting Carolinas and Caguas. 435 Application is macte on behalf of the Saln Juan Light and Transit Company: 1. To install and operate an electric system in San Juan and its suburbs for the production, distribution, and sale of electricity for light and power. Technically these applications are separate and distinct; lbut as they are presented by the same parties and relate to one general object, the proceedings thereon have been conducted as one case, the necessary distinctions being easily preserved. The applications were referred to General Davis, wlho made a careful and exhaustive rleport thereon, to which the attention of the Secretary of War is respectfully invited. (See Doc. No. 32.) In said report (General I)Davis reconilllen'(ls ftavorable actionl as to tlle following (Doc. 32, p. 7, Ins. Div.): 1. The installation,of a loop track through c(ertainl streets ill Sall Juln, so tlat tle railroad may reaih the center of tlhe city. 2. The change of the motive power of tlhe road( anl wi(lening of its gauge. Tile present locomotives are noisy anld mlala(lorous, an(1 canl not le permitted in the city proper. The present track has a gauge of but 29 inches, too narrow to permit a good development. 3. The installation of an electric p)lant -woul(l permit electric lighting of tle city and its suburl)s. Tile city streets are now liglltedl ly gas and Santurce lby kerosene lamps. The local electric-lighting complany las entirely inadeluate capacity for supply of existing deandls, and its chlarges are exorlbitant-$2 anll $1.50, Porto Rican currency, for lamp ( t-candllepoCwer) per month, and only lntil 12 o'clock. 4. The only sites for a new electric-power llant that seem to be available are one on Government land near San lAntonio blridge andi tlhe other a private lot i Sanllturce, which Mr. Wilson asks authority to connect. by a slur track with his main line in case lie is denied the use of Governmllent lani, as aske(l and as was approved by General Henry, as above statel. The permission to cross the Government road to the site for power house in Santurce and to erect a power plant for operating the road, and for general commlercial purposes, is re(conmlenlded. Such of these requests as aIt the time had bee1n inmade were referred to General Brooke wlhile in command of the Department of Porto Rico, who reported thereon as follows: * * * Thle tramway is a public necessity, and the improvements contemplated should be nmade at once, but the (overnment should, in my opinion, if it grants them, make the colndition thiat it in no way gives the tramway any privilege beyond what is provide(l in the original concession. * * * (See third indorsement, Doec. 21.) As constructed and now existing, the tramway starts at the square of Puerto de Espafia, where the ferry crosses the harbLor of San Juan and other boats land, and at a point about 500 yards from the business center of the city. Thence, passing the square of Columbus, the line traverses the length of the island of San Juan, a distance of about 2t miles. It then crosses the San Antonio lagoon and traverses a private right of way for about 200) yards, and then occupies a portion of 436 the military road to a point near Rio Piedras, where it leaves the military road and occupies a right of way over private property to Rio Piedras. The tramway occupies the western portion of the military highway and is constructed on a different grade from the wagon road and separated therefrom by an embankment. The houses on the other side of the highway are constructed on the curl) line. Therefore there is not roonl for a competing parallel line occupying saild military highway, if any such be in contemplation. The tramway is of narrowv gauge, bult the ties are of sufficient length to permit the construction thereon of a standard-rgauge line. The motive power in use is steam, and the rolling stock consists of 7 Baldwin locomotives, 17 passenger cars, and 21 freight and baggage cars. The company has constructed four stations along its line, and owns shops, yard, and car barn at Rio Piedras. T'lE CHANGE OF MOTIVE 'POWEI. The royal order goranting the colncession authorized Ubarri " to build a tramvwav," and was silent as to the motive- power to be used. The royal order requiredl that he "'conforms strictly with the project approved" for said tranmway. (Doc. No. 54.) The approved project contained the following provision (Doc. No. 55, Ins. Div.): 5. If the steam power, wlich it is thought of using in thle running of the tramway either on the Garretera or running over the streets of the villages, and which is granted by way of trial, should not give satisfactory results, and the engines should cause the slightest inconvenience in the opinion of the engineers, who are to be present at the experiments, to the people and teams passing over the public way, the concessionnaire shall eimploy animal force to operate the tramway without any kind of claim being allowed him for this change of power. It appears evident from this provision that the use of steamn was not made a condition subsequent upon which depended the continuance of the concession. Experimental in the first instance, its continued use was considered as permitted as a favor, not enjoined as a requirement. The plain purpose of the provision is to require the concessionnaire to consider his rights as subservient to those of the general public in operating said road, and to secure the use of a motive power which would not " <cause the slightest inconvenience." There might be a question of the right of the provisional government of Porto Rico under this clause of the concession to compel the company to use electricity, but may it not permit it to do so if the use does not encroach upon the rights of individuals and the general public The streets through which this tramway passes are so narrow that the placing therein of poles on which to stretch trolley and other dis 437 tributing wires would probably interfere with the free use thereof by the public. This is recognized by the tramway company, and the privilege of setting up poles along the entire route is not asked. The company propose to stretch the wires by attaching them to the buildings along the right of way wherever possible. The company also recognizes that its concession does not privilege it to exercise the right of eminent domain, and that the right to attach the wires to said buildings must be secured fromn the owners thereof, and the application does not seek to secure from the Secretary of War the authority to exercise the right of eminent domain in this regard. It is not necessary for the Secretary of W\ar to grant the company the privilege of setting poles along the military highway. The tramway company erected poles for a telephone line along the right of way already occupied by the road. This was'done under a concession for a telephone line fromn the Spanish Government. The poles are still standing and the telephone line in operation. The poles in present use are too small to sustain both trolley wires and telephone wires, but the intention of the company is to replace them with poles of larger size. In the event that the Secretary of Wair shall demii it advisable to permit the use of electricity as a nllotive power on this tramway, as now constructed, it mlight be well to avoid a misconceI)tion of the authority granted by as provision specifically denying the right to place poles in the streets or military highway now occupied, except in such places as may be designated by the mpilitary (colnmmander of the department, or to attach wires to private propertv without the consent of the owner. If I properly understand the application, its extent and1 intent in this regard, it is to secure permission to stretch wires alolg its right of way at such height as lmay be prescribed for the )urlpose of utilizing electricity as a motive power. To illustrate: If the conImpany coltemplated moving its calrs by storage batteries without the necessity of wires to distribute and deliver the power and requested the permission of the Secretary of War so to do, the question would b.e one of regulating an existing right, to wit, the right to operate the tramway. If a trolley wire is stretched along and over the right of way already secured and occupied, at such height as to prevent injury or obstruction to the public, and held in place by supporting wires attached to private property, with the consent of the owners, is it not still a regulation of an existing right rather than a grant of mew'e right? A liberal interpretation of the rights of the concessionaires would justify such holding, and the interpretation of the concession is to be determined by the Secretary of War. 438 THE CHAN(GE OF TIHE GAUGE OF TIE, TRAMWAY. The distance between the rails as now standing is 291 inches. The company seeks the permission of the Secretary of War to extend this distance to 40 inches. The gauge of the tramway is not fixed by the royal order granting the concession or the approved project of the tramway. It seems to have been constructed at a narrow gauge because the owner of the concession desired so to do. The right to obstruct the streets and the military highway where the road is now built, by maintaining the tracks thereon, was granted by the original concession. The application seeks the exercise of that right in a certain way. As already stated, the ties on which the rails now rest are long enough to admit of the rails being placed at standard gauge. It does not appear to the writer that the obstruction would be increased if the space between the rails of the existing track was widened. The serious obstruction to the traffic of the streets by this tramway is occasioned by the passage of the cars along said track, and is measured by the width of the car rather than the width of the track. In response to inquiries made at the hearing had on this application the representatives of the company stated that the width of the cars now in use on said tralmway varied from 6t feet to 7i feet. That it was the intention of the company to equip the cars now in use with new trucks of standard gauge and continue their use, and that new cars would be 71 feet in width, which, they stated, was the width of ordinary street cars. The question of the gauge at which the track of this tramway is to be maintained seems to be one to be determined by the Secretary of War exercising the power of regulating an existing right rather than the creation of a new one. In this connection attention is directed to the claim of the company that on October 15, 1898, the requisite authority to change the motive power and the gauge of the track was granted by the Spanish authorities in Porto Rico. In regard thereto General Davis in his report says: There seems to be no doubt that a fewl days before relinquishment of sovereignty by Spain a Spanish official, whether duly empowered or not unknown, gave permission to Mr. Ubarri to substitute electricity for steam power and to widen the gauge of the track. The permit, however, is coupled with the conditions that detailed plans of the changes shall be submitted for approval. (Doc. 32, p. 5, Ins. Div.). If the proposed changes in the motive power and the gauge of the road are considered as regulations for the exercise of existing rights, the alleged action of the Spanish authorities is immaterial, such regulations being, of necessity, subject to the approval of the military authorities now in charge of the provisional government of Porto Rico. If said proposed changes are considered as being property, they become liable to the tests applicable in other cases of transfer of public property. In regard thereto Halleck says: The proper test is the purpose of the grant, i. e., the fides of the parties. (See Halleck's Int. Law, 3d ed., vol. 2, chap. 33, sections 23, 24, and 25.) 439 The United States Supreme Court say: Grants of soil made flagrntre bello by the party who fails, can only derive validity from treaty stipulations. (Harcourt r. Gaillard, 12 Wheat., 523, 528.) No attempt has been made in these proceedings to establish the 7onaa fides of the authorization attempted by the Spanish officials. If the Secretary of War shall consider such showing necessary, the matter should be again forwarded to General Davis for investigation and report, and the applicants so informed. The showing at present consists of a statement in the application herein that such permission was secured and "is set forth in a communication from the office of the Secretary of Foirento, and signed by the subsecretary thereof, an English translation of which is as follows: No. 366. As a reply to your favor of the 30th of September last, soliciting authorization to change the present systeml of steam locomotion for electricity on the tramway of Awhich you are concessionaire, and to widen the road 1 meter and 44 centimeters, the secretary of the cabinet has granted your request, but you must present at the office of the secretary a detaile statemlllent o)f tle (langes, l ewhich Imust be a)pproved before they can be (carried out. * * * At Porto Rico, tie 15tli day of October, 1S.S. CARLISTO IRoMER(O,.Tie Un5 r S''erct-(t~1/, ]'.. (See Doc. 39, p. 2, 1ls. 1)iv.) TIlE EXTENSION OF TlHE TRAIWAY ON CERTAIN STREETS IN SAN JUAN FOR A ])ISTANCE OF ABOUT 1,500 FEET, SO AS TO FORM A I,OOIP. This privilege is greatly desired by the company and urgently insisted upon. The claim is made that if electricity is used as a motive power the loop is necessary for the best and most efficient operation of the tramway, although not indispensable for a service of medium efficiency. That such extension would be a convenience to the public, promote the general interests of the city, and greatly benefit the company is undoubtedly true. In reporting favorably on this proposal, General Davis says (Doc. 32, p. 12): While it will be valuable to tle road, it will also le of greater value to thle city. * * * The width of the streets in which it is proposed to build the loop varies from 4.62 meters to 6.90 meters from curb to curb. (Oral statement by manager of colpany.) If permission to construct and operate this extension is a franchise originating with the sovereignty of the United States and conferred upon the beneficiary by an officer of the executive department of the United States Government, it would seem to be inimical to the administrative policy heretofore announced by the Secretary of War, that franchises in Porto Rico would not be granted at the present time. 440 "A franchise" as used in this connection is understood by the writer to meanA special privilege conferred by government on individuals, and which does not belong to the citizens of the country generally by common right. (Ang. and A. on Corp., par. 4.) Regarding their creation Thompson says: Our franchises spring from contracts between the sovereign power and private citizens, made upon a valuable consideratiol, for purposes of public benefit as well as of individual advantage. (4 Thomp. Corp., par. 5335.) There is another theory and another inhibition to be considered. The theory is that the municipalities of Porto Rico while under Spanish sovereignty possessed the fee title to such of their streets as were constructed and maintained with municipal funds; that the municipalities also possessed the right to determine how such streets should be used; that usage of such streets for specific purposes might be authorized by the municipalities by permission, requirement, or conmplete alienation, and that such right did not cease upon the cession of sovereirgnty. The inhibition is that contained in the Executive order (issued as General Order. No. 188, series of 1898), as follows: EXECITIVE IMANSION- 11sligtoo, l J)gt, ecem2ber 22, 18,)8. Until otherwise ordered, no grants or concessions of public or corporate rights or franchises for the construction of public or quasi public works, such as railroads, tralmways, telegraph and telephone lines, waterworks, gas works, electric-light lines, etc., shall be nmade by any municipal or other local governmental authority or body in Porto Rico, except ul)on the approval of the nmajor-general commanding the military forces of the IUnited States in Porto Rico, who.shall, before approving any such grant or concession, be so especially authorized by the Secretary of War. WILLIAM McKINLEY. The applicants herein have undertaken to secure the privilege under consideration in conformity with said order, and to this end presented an application to the municipal authorities of San Juan for permission to make said extension and requested said authorities to take favorable action thereon, and said application then to be submitted to the military authorities in comlpliance with said General Order, No. 188. (Doc. 48, Ins. Div.) The municipal council acted upon said application by adopting the following: The municipal corporation recognizes the project of the electric railroad as useful and beneficial to the city, and as such recommnends it to the Government at Washington, this declaration not involving the privilege of considering it as work of public utility as regarded by the Spanish law still in force in the island, leaving also as a consequence the interest of the third party. (Doe. 48.) The application of the company, with a statement of the action of the municipal council attached, was forwarded to the major-general 441 commanding, who recorded his action thereon by the following indorsement: "App'd. Guy V. Henry, Major-Gen'l Vols., Con'g." (Doe. 48.) The company now presents the application and said proceedings thereon to this Department, with a request that said grant or concession be authorized )by the Secretary of War. A strict interpretation of General Order, No. 188, would probably require that the authorization of the Secretary of War is a condition precedent to action by the major-genei'al commanding, whose approval is a condition precedent to the grant of a concession by the municipal authorities. ((G. 0. 188, series 189S.) However, if the Secretary of War shall see fit to ratify the action heretofore ttken herein, the irregularity would be cured. If the Secretary of War shall dec(ie to allow the extension of the tramway to form said loop, it will be proper for him to determine which of his powers he will exercise and the extent of the grant or permission. That is to say, whether he will exercise his poweri as the representative of the sovereignty of the United States, and by such exercise create a complete grant, confirming' vested rights, or exercise the ' police power" which he possesses as the head of the provisional gov-ernment of Porto Rico, by virtue of which and other potwers of said government lodged in hiim le is authorized to regulate and control such public matters as the use of streets and other things relating to the public convenience, health, and welfare. If so grLanted, the permission will be a regulation of the use of certain streets, and mlay be limited "until otherwise ordered."' or bv the duration of the mIilitary governmlent in said island, or by sucl detinite t ters and conditions as shall seem advisable to the Secretltar of War. It lnay be well to direct attention that the permission to be securled by the exercise of what is terlled herein the 'police power" is not what is known as a;revocable license," although the authority conferred is somewhat similar. A revocable license relates to property owned by the United States-property in which the United States possesses the proprietary rights as well as the sovereign rights. The authority to grant a revocable license as to such property is conferred upon the Secretary of WVar by- act of Congress approved July 28, 1892. (27 Stat. L., chal. 316, p. 321; see Supp. U.. Rev. Stats., vol. 2, p. 56.) If the fee to a street in a city in Porto Rico was in the municipality under Spanish dominion and such property right was not destroyed by the cession of sovereignty, it is submitted that the property rights of the municipality are to be respected equally with those of an individual. (Cohas v. Raisin, 3 Cal., 443; Hart v. Burnett, 15 Id., 530; Payne and Dewey v. Treadwell, 16 Id., 221; White v. Moses, 21 Id., 34; Merryman v. Bourne, 9 Wall., 592; Moore v. Steinbach, 127 U. S., 70, 81.) 442 If the fee to the ground occupied by the streets over which the proposed extension is to pass is in the United States, the Secretary of War may grant the permission by revocable license. (Op. Atty. Gen. on Weeks's App. letter to Sec. of War, July 26, 1899. See action of Secretary of War on App. of New York and Porto Rico Steamship Co. for license to build wharf in harbor waters at San Juan, P. R.; action on App. of Gaskell et al. to build wharf in harbor waters at Ponce, P. R.; action on App. of Valdez for license to construct dam at Comeiro Falls, P. R.) The proceedings herein do not disclose who owns the fee of the streets involved. If the Secretary of War is of the opinion that his decision turns upon this point, inquiry should be made of General Davis as to who owns the fee of the ground occupied by the streets in which it is proposed to build the loop extension of the San Juan and Rio Piedras Tramway. This question of fact becomes important also in the consideration by the Secretary of War of the question of authorizing the municipal authorities of Sani Juan to grant the desired permission. If said ground occupied by said streets is the property of the United States, the municipal authorities of San lJuan can not grant rights in and to said property without the authority of the United States so to do. (Moore r. Steinbach, 127 U. S.,,, 81.) Stated directly, the propositions are(a) If the municipality of San Juan owns the fee of the streets involved, the right to grant the permission belongs to the municipality, lut can be exercised only when especially authorized by the Secretary of War. (b) If the fee belongs to the United States, the Secretary of War is empowered to issue a revocalble license granting the desired permission. (c) If the fee belongs to the United States, the action of thle municipality is immaterial except as a means of informing the Secretary of War of the views of the officials taking said action. If the Secretalr of War shall ratify and approve the action heretofore taken by the municipal authorities hereon, the further procedure is to be determined by him in accordance with the character of the rights conferred. If the rights are merely those of permissive regulation for the use of the streets, to be exercised temporarily without vested rights attaching, it would not seem necessary for the Secretary of War to do more than to fix the terms and conditions upon which said permission was to be exercised. If the Secretary of War shall determine that the municipality of San Juan has the right to grant the privileges desired and is to be permitted to exercise said right in this instance, and that, when granted, the right is a vested property right, and that he will ratify and approve the action heretofore taken by the municipal authorities to 443 that end, it then rests with the Secretary of War to say what, if any, further proceedings are to be had. In dealing with the property belonging to the municipality the municipal officers do not exercise the rights of individual ownership thereover. They possess only such powers as have been delegated to them, and must ordinarily exercise tlhe in a prescribed manner. Regarding the powers of municipal government and their regulation and control in Cuba. the Attorney-General says (letter of July 10, 1899, opinion on " Dady contract"): Cuba, however, is now under the tenmorary dominion of the United States, which is exercising there, under the law of belligerent right, all the powers of Inunicipal government. In the exercise of these powers the proper authorities of the Inited States may change or modify either the form or the constituents of the municipal establishments; may, in place of the system and regulations that formerly prevailed, substitute new and different ones. Upon this line the same authorities, exercising sovereignty over tile island, have the power to provide the methods, terms, and conditions under which municipal improvements, which relate entirely to pro)erty belonging to the municipality or lield by it for public use, may be carried on. Tile old provisions of the Spanish law 1max be a(dopteld, so far as appllicable, or they may be entirely dispensed with and a new system set up in their place. The municipal authorities of Habana, in the matter of engaging in the construction of public works, may be permitted to proceedl under such law as is now alpplicable, if that be adequate, or they may, at the will of the military command(er, be restrained from engaging in any such works or from permitting any such works to be carried on, although inchoate or eveni completed contracts therefor lhave previously been entered into. (22 Op., 528.) This opinion applies with equal force to Porto Rico. This concession differs from those ordinarily granted by Spain in that the tramway and the vehicles op)erated thereon are considered as being ordinary conveyances, like a cart, stage, or automobile, and entitled to similar rights of passage on the public highways and subject to similar limitations. The royal order giranting the concession declares: 22. The tramway being considered a mere vehicle running through tlhe public highways, the concessionnaire is obliged to observe the regulation of police which may be imposed on all other vehicles to make use of tlhe road, San Antonio Bridge, and town crossings. (Doc. 54, Ins. Div.) By other provisions in the concession, the operation of the tramway is subject to such regulations for the operation of railroads in said island as are not in conflict with the decree of concession. (Id., Spec. 19.) Being considered as operating an ordinary vehicle, and not a work of public utility, the tramway company was not empowered to exercise the rights of eminent domain in the sense of acquiring property without the assent of the owner, and was not exempt from taxation. (Doc. 54; also Report of Gen. Davis, Doc. 32; Report of Sec. of Justice, Dept. Porto Rico, Dec. 3, 1896; Doe. 24.) 444 "Being considered a mere vehicle running through the public highways," the ternini of the tramway are not fixed by the concession. As stated in the royal order, the concession is "for the construction, as per approved project, of a single-track tramway between the capital and the town of Rio Piedras." (Doc. 54, Spec. 1.) The approved project does not specify definite terminals. It designates the road as a "tramway between the capital and the village of Rio Piedras." (Spec. 1.) The approved project further provides as follows: Third. The works shall be performed under the superintendence of the chief engineer of the province, who shall determine the proper site for the switches of the stopping stations, and shall decide also all that which tendls to duly guarantee the public interests. * * * Fifth. The concessionnaire shall not proceed to the building of the stations and platforms, and crossing of roads, water courses, or of any other kind of works, no matter how much they may be considered essential to the line in other points of public domain of the State, than those granted for the purpose, without having obtained the authorization which is given for it. * * * Nineteenth. The concession of this tramway, 8so far (s 'it c(-.'cts th1e bpublic domain by the occ)cpation to which the first c(ondition of tllis instrument refers, is declared to be for the period of sixty years, subject to the provisions of said p)aragraph 1, and to the terms of the decree law of the 14th of November, 1858, to the law of the 5th of June, 1859, modified by the law of the 15th of June, 1864, and to the rules and general regulations for railroads, in so far as it is not opposet-( to tlie clauses and principles of the decree law before cite(, the rules whichl tlhe inspection department may to that end dictate to him being also observed by t he concessionnaire in the execution of the work. Without stopping to investigate the right of the tramway concessionnaire under Spanish dominion to extend the road over the streets of San Juan, further than to determine that such rights, if possessed, could only be exercised }b and with the lapproval of tlhe Crowln officers, it seems apparent from the provisions of the specifications above quoted that the right, if it existed, did not atttach to specific territory until the road was definitely located or constructed thereon. Until such time the right was inchoate,,m7,h jdcice. As to such right the Attorney-General says: (22 Op. 549.) If in thle granting of a right or privilege the sovereign has retained an iota of authority which may affect its untrammelled exercise and enjoyment, the right is not of the nature of an absolute one, but wholly of an inchoate and imperfect quality. As to inchoate, imperfect, incomplete, and equitable rights, the succeeding sovereign is the absolute dictator. They can not be exercised against his sovereignty, but only by his grace, and his affirmative exercise is necessary to the validity of the concession. (Op. Atty. Gen. on App. of Valdez to use Water Power of the River Plata, P. R.; letter to Sec. of War, July 27, 1899.) While the company proposes to support its trolley on the proposed loop extension by brackets attached to buildings along the line of the extension where such course is feasible, attention is directed to the fact that at certain places on the proposed line there are no buildings 445 on one or both sides of the street and at such points it would be necessary to erect poles. For a better understanding of this matter attention is directed to a map of the city of San Juan, filed herein as Document No. 35, Insular Division. The solid red line on said map shows the proposed route of the loop extension. Commencing at the point where the red line joins the black line, which indicates the tramway as now constructed, and following the red line as it proceeds westward, there is reached a junction of tlle solid red line and a broken red line. The solid red line indicates the route proposed by the company; the broken red line indicattes a change in said line, as suggested b1 General Davis. The route indicated by the broken red line passes over an open field on which there are no structures. Certain portions of it are Ilarked als patrks, but they are parks in the sense only of leinlg reserved for that pulrpose. The solid red line parallels the military highway, bult does not encroach thereon, and along' the route indicated )y thle solid red line there are also no structures. From the point where the proposed route leaves the line as constructed until it crosses the sir et known as " Calle de O'Donnell" there are ino structures to which brackets could be attached, and in order to operate the road by electricity it woulld be necessary to erect poles to sustain the trolley wire. After the route crosses San Francisco street there are buildinls o11 both sides, and poles would not have to be erected until the road crossed the street known as '"Calle de la Cruz." From this point on there are buildings on the north side of said street, but none on tlle south side of the street, which is a park known as " Plaza de Alfonso XII." It would be necessary to erect poles alolng the south side of the street for the length of the park when the extension reaches the street known as "Calle de Jose." On this street the extension turns south tand the buildings could be utilized until the extension reached the street known as " Calle de Tetuan." From that point on tle proposed route traverses a portion of the city in which no buildingls are constructed, and the abutting land is owned y! thle United States. General Davis suggests that, if the Secretary of tWar permits the construction of the proposed extension, the company be granted the privilege of erecting poles throughout the line of said extension at such places as may be designated by the municipal authorities and approved by the commander of the military department. This object could also be accomplishe(l by havingl the company state definitely and specifically the places on the property owned by the United States at which they desire to erect poles and the Secretary of War issue a revocable license permitting them so to do, and the question of erecting poles in the municipal streets be referred to the municipal authorities and the commander of the military department. In his report thereon General Davis calls attention to the fact that the city of San Juan greatly needs revenues, and recommends that 446 this valuable privilege be made to yield an income to the city by requiring the company to pay 2 cents for each paying passenger around said loop. (Doc. 32, p. 9, Ins. Div.) In view of the uncertainty and inconvenience which would probably result from this plan it might be well to fix a definite sum, to be paid at stated intervals, if the privilege is granted, making the payment a condition of the enjoyment of the privilege. THE CONSTRUCTION ANI) OPERATION OF SPUR ON THE IARBOR FRONT AT SAN JUAN. The harbor front at San Juan is property of the United States, proprietary rights having been acquired from the Crown of Spain. The Secretary of War may therefore issue a revocable license authorizing the construction and operation of a tramway thereon upon such terms and conditions as he sees fit. General Davis reports in regard to this desired privilege that no present necessity exists for the installation of a tralmway on the harbor front. (Doc. 32, p. 7.) THE CONSTRUCTION ANI) OPERATION OF A BRANCII LINE REACIIING TO A COCOANUT GROVE ON TIE BEACH NEAR SAN JUAN, FREQUENTED AS A PLEASURE RESORT. The attention of the Secretary is directed to the smaller of the two blue prints attached to Document No. 48 for information regarding the location of the grove and the extent of the privilege sought for by this part of the application. The company propose to secure, by purchase or otherwise, a right of way over the private property lying between the tramway, as now constructed, and said grove, but the tramway lies on the side of the military road farthest from the grove, and in order to reach the grove it is necessary for the company to lay at track across the military road. This is the privilege which is requested. The military road being property of the United States, the Secretary of War is authorized to grant such permission by way of revocable license. It will be noticed that this branch passes through what appears to be a portion of the village of Santurce, lying on the northeast side of the military road. In conversation with General Davis he stated to the writer that the village of Santurce was a straggling hamlet without defined streets, and that this branch would in no way interfere with the passage of the public. TO PURCHASE OR LEASE FROM TI E UNITEI) STATES A LOCATION FOR AN ELECTRIC PLANT. Attention has been directed hereinbefore to the holding of the Attorney-General that the Secretary of War can not sell property of the United States situated in Porto Rico, but that he may lease such property by granting a revocable license. 447 General Davis reports favorably on the ap)plication fol a lease of such site, and if there are no military or other reasons against permitting the erection of a building on the location desired, it might be an additional means of revenue for the provisional government. From the statements made by the representatives of the tralmway company at the oral hearing, and also the statements made by the representatives of the company to General Davis and by hilm commllunicated to the writer, it appears that in the event that the Secretary of WVar shall grant the request of the company to cross the military road, and thereby enable it to build an extension to the cocoanut grove, it will be unnecessary for the company to secure a site for its electric plant on Government property, as the company can secure a good location for said building along the line of the proposed road to the grove. This is what is contemplated in the request of the company numbered seven in this report, and therefore s;aid request numiber seven needs no further explanation. APPLIICATION OF SAN JUAN LIGHT ANI) TRANSIT (COMPANY. There remains to be considered the application of the San JuItan Light and Transit Company for permission to install a systell of electric lighting in the city of San Juan. The San Juan Light and Transit Company is an American corporation, organized under the laws of the State of New York. The articles of incorporation were filed cMay 13, 1899. The company does not clainm to have acquired any rights from the Spanish Government. It is an a)pplication for a new and original franchise. The company have applied to the municipal authorities of the city of San Juan for the desired privilege, and said lmnicipal authorities have consented to the grant of said privilege, subject to the approval of the general in command of the department and the Secretary of War. The questions thus presented have been discussed in connection with the privilege of extending the loop, and therefore need not be repeated. General Davis reports favorably in regard to granting this frallchise. Attention is directed to the fact that on atccount of the streets in San Juan being narrow, the erection therein of electric-light poles would be a serious obstruction, and should be obviated wherever possible. The representatives of the company recognize this and say that for the purposes of distributing the light they could attach their wires to the buildings, and that they propose to secure the right so to do from the owners of the buildings. They understand that they can not secure the privilege of exercising the right of eminent domain from the Secretary of War, and do not request such privilege. The attention of the Secretary of War is also directed to the fact that an electric-lighting system is already installed in the city of San Juan under a concession from the Spanish Crown. If the Secretary 448 of War shall deem it advisable to authorize the San Juan Light and Transit Company to install another system, an examination should be made of the concession owned by the present company, in order that their property rights may not be impaired, such rights being protected by the treaty of Paris (1898). No information regarding the terms of the existing concession is available in this Department. It will be observed that most of the questions presented by the applications involved herein are administrative, and therefore do not call for recommendation. Such questions as are not administrative are alternative. It is therefore impossible for me to prepare the form of an order in regard thereto until advised by the Secret'ary of War as to his determination. The foregoing report was referred to the military governor of Porto Rico for his consideration in carrying out tie direction of the Secretalry of War, as follows: WA R I)EPI'ARTN ET, T'atshingtol,, ). C.,.l,}ril 5, 1.900. Yon are hereby authorized to approve, with or without conditions, tie proceedings of the municipal council of San Juan, P. R., heretofore taken or to be taken in the matter of tlhe appllication of the owners of the San Juan and Rio Piedras Tramway Company to extend its tramway and to change the motive power and gauge thereof. The authority herely conferred is to ble exercised in accordance with the treaty of peace between the United States and Spain, and the laws, ordinances, and military orders now in force or hereafter established in Porto Rico. Einu ROOT, Secret(ry of War. Brig. Gen. GEO. W. DAVIS, M-ilitary Governor of Porto Rico, San Juean, 1). I'. IN RE THE MATTER OF ANNULLING THE ALLEGED TITLE TO THE ISLAND OF CAJA DE MUERTOS AND THE PHOSPHATE DEPOSITS THEREIN, GRANTED BY GENERAL HENRY TO MIGUEL PORRATA DORIA IN 1899. [Submitted May 22, 1900. Case No. 842, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge the receipt of the papers in the above matter with a request for a report thereon, and in compliance with said request 1 have the further honor to report as follows: In two letters, the first dated April 17, 1900, and the second May 4, 1900, Brigadier-General Davis directs the attention of the Secretary of War to the grant made by General Henry to Miguel Porrata Doria for the island of Caja de Muertos, under which Doria claims to exercise ownership over the phosphate deposits in said island, and urges that steps be tallen to cancel and annullll said olrant. 449 It appears from the papers that since 1893 a controversy has existed between several parties who were desirous of securing from the Spanish Government a concession to remove the phosphates on this island. Doria was one of the contestants. At one time the concession was ordered to be sold at auction, ald, the sale being had, the concession was awarded to a mlan lnamed Collado. Subsequently, at the instance of Doria, the grant to Collado was annulled. Thereupon Doria insisted that the grant should be mnade to him by virtue of his original proceedings. This application had not been acted upon at the time the island of Porto Rico becamle subject to mlilitary occupation by the forces of the United States. On November 4, 1898, Ioria addressed a communication to General Brooke reciting the previous steps which lie had taken, and requesting that a grant of the desired privileges be made to him in virtue of such proceedings. In his communication to General Brooke, Doria says: After all the necessary steps had been taken and the only thing remaining to be done was to grant the final concession of this isle to the petitioner, * * * from which it would seem that he does not claim that he acquired absolute rights to the property from the Spanish Government; that there yet remained the final act on the part of the Spanish authorities conveying said right to him. Under the rule announced by the Attorney-General in the case of Ramnon Valdez (with which opinion the Secretary of War is entirely familiar), Doria does not possess concessionary rights which the provisional government of Porto Rico is authorized to recognize. (22 Op. 546.) It appears that during the pendency of the controversy Doria was given provisional authority, pending final decision in the matter, to renmove the phosphates in this island upon payment of an annual rental and a royalty on each ton of phosphate exported. The exercise of this privilege was limited to the time occupied in determining who should receive the continuiing concession under the proceedings then instituted. Therefore, by the terms of the grant, the right to enjoy the privilege ceased when the concession was conferred upon Collado. Subseqently the concession to Collado was set aside; but, as a legal proposition, I do not think this would revive the provisional grant to Doria in the absence of affirmnative action in regard thereto by the Spanish authorities. Whether it did or not is now immaterial, for, at best, Doria was but a tenant at will of the Spanish Government and admonished from the inception of his tenantry of its temporary character. When the Spanish Governmlent ceased to be the proprietor of the property and the United States becanme the owner thereof, Doria would certainly be no more favorably conditioned. General Brooke did not see fit to finally determine the clainm made by Doria, and the Inatter was presented to General Henry, who sus1394-03 - 29 450 tained the claims of Doria, giving him provisional authority to remove the phosphates upon the payment of a yearly rental of 100 pesos and 25 cents per ton on each ton exported. Subsequently a deed of ownership was "approved"' by General Henry, granting a concession of the island to Doria for the purpose of utilizing the phosphate deposits existing in said isle in accordance with the Spanish mining laws, upon the condition that he pay for the land and its products such excise or tax as the law on the subject may establish. It is this deed or concession which General Davis now urges should be annulled. I have heretofore submitted a report on the general questions involved herein, to which the attention of the Secretary of War is directed. (See report "In re Mining Claims and Appurtenant Privileges in Cuba, Porto Rico, and Philippine Islands," dated May 19, 1900.) In his letter to the Secretary of War, dated May 4, 1900, General Davis states that he has consulted with Governor Allen and that both he and the Governor are in doubt as to who las jurisdiction to annul said grant. Under the rule announced by the Attorney-General in the Valdez matter, and in his opinion on the application of Weeks to construct a wharf on Government property in Porto Rico, there is no occasion for "timilling" the grant under consideration, for it was void when made by General eInry. If this view is accepted the only question is, Who has the authority to prevent the spoliation of property owned by the United States in Porto Rico-the civil governor or the military commander? The law of Congress estahlishing a civil government in Porto Rico, approved April 12, 19)00, provides as follows: Be it enacted biq the Senate.antd Hiouse of Reprresenltatie. s of the 3United,States of Alerica in Congress assembled, That the provisions of this act shall apply to the island of Porto.Rico and to the adjacent islands and waters of the islands lying east of the seventyfourth meridian of longitude west of Greenwich, which were ceded to the United States by the Government of Spain by treaty entered into on the tenth day of December, eighteen hundred andl ninety-eight; and the name Porto Rico, as used in this act, shall be held to include not only the island of that name, but all the adjacent islands, as aforesaid. Section -13 of said act is as follows: SEC. 13. That all property which may have been acquired in Porto Rico by the United States, under the cession of Spain in said treaty of peace, in any public bridges, road houses, water powers, highways, unnavigable streams and the beds thereof, subterranean waters, mines, or minerals under the surface of private lands, and all property which at the time of the cession belonged, under the laws of Spain then in force, to the various harbor-works boards of Porto Rico, and all the harbor shores, docks, slips, and reclaimed lands, but not including harbor areas or navigable waters, is hereby placed under the control of the government established by this act to be administered for the benefit of the people of Porto Rico; and the legislative assembly hereby created shall have authority, subject to the limitations imposed upon all its acts, to legislate with respect to all such matters as it may deem advisable. 451 From this it seems clear to my mind that the duty of preventing unlawful appropriations of said public I)roperty devolves upon Governor Allen as the present head of the government of the island, and to enforce such protection he may lawfully call upon the military commander of the tUnited States forces in the island to aid himl in sulch endeavor. If the views expressed are accepted by the Secretary, the proper procedure for the War Department is to return all the papers herein to General Davis, and advise hinm that the Secretary is of opinion that the commanding officer of the United States military forces in iorto Rico is now without authority, in the first instance, to exercise the powers of the United States in said matter, such aLuthority and resulting duty having been conferred upon the civil governor by Congressional enactment. By direction of IIol. George I). -Meiklejohn, Assistant Secretary of iWar, onl June 4, 1900, the papers in the case were retllrned to the officer in c'O mallllndlld of the militaryt forces of the Unite(l States in 'orto Rico, indorsed as follows: The Assistant Secretary of War is {of the op)ilnion that the (',lllnanlling oflicer of the UTnited States llilitary forces inl Port() Rico is now without aulthority, in the first instance, to exercise powers in the case, sucll authority an(I resultingl duty liaving beeel conferred upon the civil governor b)hy Congressional enactmellt. You are, therefore, autllorized to translnit these papers dlirect to the govern~or of I'orto Rico. A copy of the opinion, as ren(lerel 1by tle law ofticer of tlhe Customs anll Insular Divison, in which the Departmnenlt conculrs, is forwardle(d herewith, a, it lmay affrd inforllmation in the considerationll of the case. By order of the Secretlary of 'WYar. CLAREN'CE I. E)WVARDS, AeCti;~g lsksi,'t(-tRt Aldj 0t/,tR,/- (r.-/?<2r~l l IN RE CONTRACT WITH WOOLF ET AL. REGARDING THE MANUFACTURE AND USE OF ELECTROZONE FOR PUBLIC PURPOSES IN HABANA, CUBA. [Submitted l)ecemb. r 31, 190. (Case No(. 2086, I)ivisioln f Insular Affairs, War l)cpartment.] SIn: I have the honor to acknowledge the receipt of your request for a report on the above-entitled matter, andl to respond thereto as follows: This application is a request that the Secretary of War1. Assent to the action of the original contractors, who have sold and assigned a one-third interest in said contract to the Electrozone Commercial Company, New York. 2. Recognize said Electrozone Commercial Company as a party to the contract. 452 3. Permit said assignment to b)e recorded ill such manner and place as will permit said assignee to receive directly froll the United States (overnmentt one-third of the several payments under said contract as they shall become due and paid. This application has been referred to the military governor of Cuba, who returnis it without comment or recommlllendation. The military governlor of Cuba referred the application to XW. J. Barden, first lieutenant, Corps of Engineers, U. S. A., acting chief engineer, Division of Cuba, and subsequently the matter was referred to Maj. Edgar S. I)udley, judge-advocate, Division of Cuba. From their indorsements it appears that they entertain the view that said assiginient is governed by the provisions of section 3737, Unmited States Revised Statutes. (See third and fifth indorsements, I)oc. 1.) The military authorities of Cuba apparently have no objection to favorable action on this applicatioln by the Secretary of War; at least no objection is made. If the Federal Government of the United States is one of the parties in interest and bound by the contract ivlolved, then the assignment is governed by said section 3737 without regard to the place of performanc,. If the mIilitary governml ent of Cuba or the municipal government of IHabana is the real party in interest and boulid by said contract, then I see no reason why the action of the Secretary of War should be called for in the first instance. If the contract is with the government of civil affairs in Cuba, that character should be preserved. If the Secretary of War shall now recognize the contract as being with the Federal G(overnment of the I lited States, comlllications may hereafter arise. The contract provides for tie lpurchase of certain "positive electrodes" and the right to use thenl in Hablana, Cuba, in the man'ufacture of "electrozone" for public use of said city, and to pay a royalty on the electrozone so produced at the rate of one-twentieth of 1 cent per gallon for the first 50,000 gallons piei day of twenty-four hours and one-fiftieth of 1 cent for each gallon in excess of 50.000 gallons per (lay. Electrozone" is malde froln sea w\ater, ta(l appears to be:a fluid highly chlarged with chlorine. It is used bv the authorities in Cuba to promote the sanitation of Htl)balma. The contri(act nilder consideration recites: This agreement, entered into tllis 10th day of February, 1899, between William Murray Black, lieutenant-colonel, chief engineer, U.. V., Department of Ilabania, of the first part, an(l All)ert lEdward( WoI(olf and Rosamnond W\oolf, * * * btotl of New York City, * * * of the second part, witnesseth, that William Murray Black, for and on )behalf of the I)epartment of IIabana, and( the said Albert Edward Woolf and Rosamond Woolf, (lo covenant and agree * * * 453 Trhe wriitten instrunient, is signed as follows: In witness whereof the parties aforesaid have hlereunto) plaeel their hands the dlate first hereinbefore writteni. Witnesses: Johnx F. TUcKERI, as to WILLIAM 1I\URRAY BILACK, [SEA.] L~t. Col., C/if. Fo'1g., (Is' 51 I II E-NRY -N. HooPER, Jr., as to ALBERT EK. AVooLF, sEl 11. II. McCGNTY as to. ROSA-MONI) WOOLF, l1v ALBERT 1'. WOOLF, [SEAL.] Attorney inilcfot. This instrunient, so executed, was approvedI as follows:.Approved, Felbrha-V' 11, 1899. WXILLIAM LIXDLoNV 6G1overnor of Iliabana. in determnining- the character of a contract, the subject-matter and the situation Of the parties are to be fully considered with regardI to the sense in which language is used. At the time this contract was entered1 int~o (February 10, 189(9) the cit;N- of Hlabana was sub ject to military occuIpationi by the military forces of the United States. As a result of this occuLpation the administration of the civil government devolved upon the occupying f orce. This requirement included the administration of municipal affairs as Nvell as the affairs of the General Government. The services reqluired for such administration. were to be performed by such persons, as were designated therefor by tle, coinnander of the occupying force. Such commnandler designated Wvilliam Ludlow, 1,rioad ier-ogencral U. S. V. acs the headoft mnip gvr et of Ilabana, andt William MI. Black, lieuteniant-colonel, U!. S. V., chief engineer for said municipality. In the exercise of thle pover's thus acquired, and in the discharge of duties,arising from the, necessities of the mnunicipality of which theyv were, officials, this contract was entered into. The intention of the parties (which ait all tunies is thle pole-star of contract construction) was manifestly to render at service to the municipality. Thle servic -e was of such character, lbeing thle:sanitation of the principal seaport of the island and the promotion of the national commerce, that it was (Iceemed j ust that the expense should be paid f rom the island funeds. But the contract as entered into created an obligation resting upon the municipality. Therefore it required and received the -approval of William Ludlow, governor of ilabana., and did not seek nor secure the approval of the major-general. in command of the forces of the United States in Cuba, who at that time performed the functions, of military, governor, nor the approval of the Secretary of War. The fact that said contract was dr-awn upon a blank commonly used by the officers of the Engineer Corps, United States Army, or in 454 nlanner and form prescribed for the use of said officers, does not change the party to the obligation nor impose the obligation upon the United States. If the contractual obligation rests upon the Habana municipality or upon the military government of Cuba, it follows that, although the Secretary of War may act in matters relating thereto, it is the established practice of the Secretary to refrain from such action as much as possible and to confine the administration of said governments to the local officials. I therefore recommend: 1. That the Secretary of War decline to recognize this contract as one to which the Federal (Government of the United States is a party. 2. That the application be returned to the military governor of Cuba, and he be advised that the Secretary of War is of opinion that said contract relates exclusively to the administration of certain affairs of the civil government of Cuba, and should be dealt with as such by the military governor. 3. That the applic(ant be advised of the action taken. IBy direction of the Secretary of War on January 10, 1901, the papers in this case were returned to the military governor of Cuba with the informationThat the Secretary of War declines to recognize this contract as one to which the Government of the Unitedl States is a party, and that lie is of opinion that said cointract relates exclusively to the administration of certain affairs of the civil governllment of Cuba and should be dealt with by the government of the island. IN THE MATTER OF THE CLAIM OF ANTONIO ALVAREZ NAVA Y LOBO FOR THE SUM OF THIRTY THOUSAND DOLLARS DAMAGES FOR BEING DEPRIVED OF THE OFFICE OF NOTARY, HELD BY HIM IN SAN JUAN, PORTO RICO, UNDER THE SPANISH R9GIME. [Submitted Septenibl)r 20, 1899. (ase No. 8 53, D)ivision of Iinslar Affairs, War Iepartment.] T'his is a claim for damages in the sum of $30,0(00 asserted against the provisional government of Porto Rico. The (claimant asserts that his damages arose as follows (see " Memoranduni" of claimant): In 1896 the claimant, Antonio Alvarez Nava, was appointed notary in the city of San Juan. He claims that he paid 23,000 pesos to secure the property rights of said office, and incurred other expenses in connection therewith sufficient to make the total expenditure amount to 30,000 pesos. That in November, 1898, he was required by the supreme court of Porto Rico to renounce his Spanish nationality, and 455 upon refusing so to do he was deprived of his office as notary and his property rights therein, and one Santiago Palmer was appointed in his place. When this claim was filed at headquarters, Department Porto Rico, it was referred to the secretary of justice. From his report thereon I quote the following: On the 28th of October, 1898, * * * the then secretary of justice proposed among other appointments of notary, that of Antonio Alvarez Nava, who held at the time an office of similar class in the capital. * * * Mr. Alvarez Nava informed Major-General Brooke, on the 18th of November, that it being his intention to preserve his Spanish nationality, he was not in a position to accept the appointment of notary or to take the required oath. * * * In view of that formal resignation, so unconditionally made, the government filled the position thus mnade vacant by the nonacceptance of Alvarez Nava, appointing 5Mr. Paliner thereto. (See "Translation of 4th indorsement.") General Davis, Brigadier-(General (commall nd, in g, i is indorsement says: Respectfully forwarded to tle Secretary of War for decision. The brief herewith, marked "Record on file at (de)artment headquarters, etc., contains an abstract of the case. * * * By that record it appears that on October 28, 1898, the secretary of justice for the island recommended that said Antonio Alvarez Nava be appointed a notary, and the appointment was made. The next day his commission (Letter of College of Notaries) was issued. On November 19, 1898, the secretary of justice forwarded to headquarters a letter of Mr. Nava saying he can not give up his nationality to become notary and declines the appointment. In passing upon this claim, the statement made by the secretary of justice for Porto Rico and that contained in the memorandum referred to by General Davis is relied upon as being correct. The facts as therein set forth present a proper case for the application of the legal maxim Volenlti?non t jt''lfrWa-he who consents ca n not receive an injury. There is another reason why this claim should be rejected. On October 28, 1898, the date when the claimant alleges he was deprived of his office, the condition of war existed in Porto Rico. The protocol of August 12 suspended hostilities but did not end the war. The United States, in the exercise of its rights as a belligerent, had instituted military government in the island. That government was intended (1) to promote the military measures of the United States in the war, and (2) to maintain peace and order in the territory subject to military occupation by the forces of the United States. So long as the condition of war prevailed and said government continued to be an instrument of war, the United States could exercise, in territory so occupied, the rights and powers of a belligerent. While it is true that the inhabitants of territory under military occu 456 pation are usually governed by the laws of the prior sovereignty, which are designated municipal and relate to the relations which the inhabitants beat to each other, still such laws are continued in force by the grace of the invader. Although this usage is well established, no one will deny that a conqueror has the right, as a war measure, to annul said laws, should he determine it to be his advantage in the war so to do. The successful invader may also designate by whom the laws shall be administered. He may permit or 'reqeire the old officials to continue to discharge the duties of their offices the same as before the occupation, or he may impose conditions upon which they may continue in office, or he may displace all of thenm and appoint others in their places. This he does because he is engaged in a war and is at liberty to judge for himself what necessity requires and therefore justifies. In his application herein Nava says: Hence, no interference with private property rights could possibly be justified, exceplt o thie groTund of militry reason.s and here military reasons were neither given nor (lid they e.tist. It is unnecessary to argue the proposition that in time of war the commander of a military force is the sole judge of existing military necessity, and can not subsequently be called to account for it by the enemy. As between the major-general in coremmand of its invading army actively engaged, in the conduct of a war, and an adherent of the sovereignty against which said war was waged, reliance will be had upon the judgment of the officer of the United States Arnly. The war was not ended by the protocol of August 12, 1898. The condition of war continued until the treaty was signed, if not until the ratification had been mutually exchanged. Nava was deprived of his office by the proper exercise of a lawful authority. Therefore his rights therein ceased in October, 1898. It follows that he possessed no rights to be guaranteed by the treaty of December 10, 1898. Since his office was taken away as a military measure, a means of promoting the purposes of the United States as a belligerent, his claim for damages falls within the provisions of Article VII of the treaty of peace, as follows: The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article. I therefore recommend the rejection of this claim. 457 The action of the W\ar Departmen-t on this claini was as follows: WAR 1)EPcR~TET'-r, 1 [a(shington, Septemn kee 21, 189Th. Snm: In the matter of the claim of Antonio Alvarez Nava y Lobo for the suil of $30,000 damages for being deprived of the office of notary; held by himl inl San Juan, P. R., under Spanish regime, which was transmitted by your indlorseninent of thne 19th ultimno, I have the honor to inclose herewith for your information copy of the opinion of Judge C. E. Magoon, law officer of the division of Customs andI insular affairs of this Department, wherein he recomminends the rejection of saidl claim, which opinion is approved by this Department. Very respectfully, (G. 1). MEIK LEJ101lIN Actinig Seccretary of T11n. Brig. Gen. AV~.. D)AVIS, Governor- Gen~eral of Porto Rico, San Joan, J). R. MEMORANDUM FOR THE SECRETARY OF WAR. [Submitted Deecember 12, 1899. Camsc No. 1207, D)ivision~ o.f lInsular Atfniirs, War J~epartmenit.] The questions presented are as follows: 1. Do the municipalities of Porto Rico, under the con-mditionls now existing in the island, possess the right t~o contract loans and issue bonds for pulI-lic improvements? 2. W~h~at method or procedure muset bel followed in xrisp- ai right? The municipalities of 1Porto Rico umhI1d1 )t~edly l)ossessed and. exercised this right under the Spanish r(gime11. The Spanish provincial,and municipal laws of P~orto. Rico (decree December 31, 1S96) do not ini direct terms comifer the author-ity uender consideration. The municipal laws, of t8463 (lid specifictally empower municipalities to contract loans. The municipal laws p)roin~ulglated.since then have not specifically referred to such power. But thrat said power existed is authoritatively declared by the royal decree of Junie, 30, 1880. This decree is n' rescript as to the, exact questionis under consideration, and for that reason is quoted ini full, as follows: LOAN S. ROYAL ORDER OF JUNE 30, 1880, RESOLVINO,' THATk~ MUNICIPAL (C)UN(CILS MAY CONTR.X(T LOANS, CASES IN WHmcmi THEY MULsTr 1)0 s0, ANDI) RULES ISSUI)E' THITEEFOR. The colonial secretary communicated to H is Excellency tile governor-general of this island, under date of June 3 last, the following royal ordler: YOUR EXCELLENCY: I have informed His Majesty the King (whom God preserve) of the letter from Your Excellency of March 14 last requesting information as to whether municipal councils may contract loans and the manner of dloing so. All that. is stated to Your Excellency by several municipal councils and by the council of adml-inistration of that island has been noted. And taking into consideration: (1) That the 458 municipal law of 1846 empowered municipal councils to contract loans with the intervention of the Government by reason of the supervision it exercised over popular corporations with regard to the local rights and interests. (2) That the silence observed on the subject by the latest legislation of 1867 and 1870 applied to Cuba and Porto Rico should be interpreted as inspired by the opinion that the local corporations to which is intrusted the government and administration of its rights and interests are in' a status of local independence, and giving to the greater number of their resolutions a final character unless general interests are involved or interests of third persons, thus requiring the interference of the Government or of its representatives in the provinces. (3) That from this special character of the new laws there is deduced that municipal councils may take refuge in the contraction of loans as a means of satisfying their obligations. (4) That the section of government of the council of state has fixed in this respect as jurisprudence that when a loan does not affect the real estate of the municipality, or the property rights or bonds of the debt referred to in article 80 of the law of the Peninsula, there is no reason for the Government to grant or refuse authority to contract the loan, because it is an ordinary resolution over which the Government has no jurisdiction; but this is not the case when the contract may involve the property or the rights mentioned in the said article, on account of the necessity of selling the mortgages created, or for any other reason whatever, it then being the duty of the Government to grant the authority, the approval of the same being necessary for resolutions affecting said properties. (5) That in accordance with article 134 of the municipal law the construction of taxes by the municipal councils must always be approved by Your Excellency after certain proceedings as the only competent authority to authorize loans, no matter what their character may be, without the circumstance of the law not foreseeing the same being an obstacle to their authorization by Your Excellency, and which must be communicated to this department for the purposes of the high inspection which appertains to the same in all branches of the public service. (6) That the law in conferring upon the authority of Your Excellency the approval of loans also elnpowers you to fix the conditions under whicl they are to be contracted for the payment of debts, as well as for the raising of funds for other municipal requirements. (7) And, finally, that while special rules applicable to the matter are approved, Your Excellency is informed, in a royal order of this date, that it is advisable to adopt the rules which you recommend in your letter of March 14, namely: (1) That the loans be resolved upon by a majority of the municipal board. (2) That the provincial deputation, the council of administration, and the government of that island report on the proceedings. And (3) that the resolution be of the exclusive competency of Your Excellency, making a report to this department; His Majesty the King (whomn (God preserve) has (leelmed proper to order that Your Excellency be informed in accordance with the opinion of the council of state in full: (1) That the municipal law in force does not oppose municipal councils contracting the loans they may consider necessary in order to attend to the requirements of the municipality. And (2) tllat the complletent authority to approve and authorize loans is your excellency, and that the institution and resolution of the proper proceedings lmusit be subjected for the present to the same rules you recommend in your official letter of March 14 last, your decision being communicated to this department. And Ilis Excellency having ordered the enforcement of the foregoing royal order, it is published in the official gazette, supplemeneted with the rules which are to be observed for the fulfillment of the same. Habana, July 2, 1880. Joaquin Carbonell, Secretary of the General Government. RUIES CITEI). 1. The loan is to be resolved upon by a majority of the municipal board. 2. The provincial deputation, the government of the province, and the council of administration must report on the proceedings. 459 3. The resolution of the matter shall be of the exclusive competency of the governor-general. With regard to the conditions to which loans are to be subject, two classes may be stated: 1. Loans destined to the payment of debts. 2. Loans destined to the raising of funds in order to attend to the various requirements, and especially for the construction of works of public utility. The loans of the first class may consist in the emission of obligations to a sufficient amount, each one reduced in order that they may be applied to the payment of all the debts to be satisfied, and the interest which the obligations are to bear can not exceed the average of the legal interest on money during a number of years equal to that for which the amortization of the loan is to be continued. The loans the oblject of which is to raise funds for the construction of works, or to liquidate debts which can not be satisfied with obligations, must be contracted by means of a public auction, in which the amount of interest of the issue shall be the subject of the bids, whether they are to be issuedl at par, or oni the rate of the issue, if the interest is previouslv fixed, with subjection to the document of conditions relating to the provisions in force on the subject. The municipal board in instituting tlme proceedings requesting authority to negotiate loans must state concretely each and every one of the purposes to which the funds obtained by virtue of the loan are to be lestined and the amount of the sane, as well as the manner and the period in which the amortization is to take place and the annual sums reqluired thereby and for the payment of interest, and if the latter may be obtained from the revenues of the ordinary budget or whether extraordinary taxes are to be established or an increase in the assessment. The following extracts from the municipal law of Porto Rico (decree of December 31, 1896) show the authority and obligation of municipalities as to public works and improvements, and to enter into contracts and incur liabilities therefor. (See municipal lawr of Porto Rico, Trans. Iiv. Ins. Affrs.): ART. 29. In each district there shall be a municipal council and a municipal board. ART. 33. In their character of administrative authorities municipal councils shall exercise jurisdiction over tile entire municipal district or the territory to which their action extends in the manner and form determined by the laws. ART1. 35. It is the duty of mlunicipal l)oarls to establlish and create means to obtain fulnds at the time ald in the manner ordered by this law, as well as to revise and au(lit tlle accounts of municip)al councils. ART. 74. Municipal councils are financial aldministrative corporations, anld may only exercise the functions intrusted to tllell )by the laws. Tleir title is impersonal. AART. 75. The government and administration of the private interests of towns is under the jurisdiction of municipal councils, subject to the laws, and particularly in all that refers to tlhe following subjects: First. Estallishmlent and creation of municipal services referring to the arrangement and ornamentation of pulblic roads, comfort and hygiene of tlie neighborhood, encouragement of its material and moral interests, and security of persons and property, as follows: 1. Opening and smurvey of streets andl parks, and of all kinds of roads of co-mmunication. 2. Paving, lighting, and sewerage. 3. Water supply. 4. Promenades and trees. 5. Bathing establishments, laundries, mIarket htouses, and slaughlterhouses. 460 6. Fairs and markets. 7. Institutions for instruction and sanitary services. S. Municipal buildings and in general all kinds of public works necessary for the fulfillment of the services, subject to the special legislation on public works. 9. Surveillance and police. Second. Urblan and rural police; that is, all thlat refers to the good order an(l surveillance of the established municipal services, care of public roads in general, cleanliness, hygiene, and health of the town. Third. Municipal administration, which includes the use, care, and p)reserNvati on of all estates, property, and rights belonging to the municipality, and to the establishments depending therefrom, and the determination, distribution, collection, investment, and account of all receipts and imposts necessary for the execution of the municipal services. The royal decree of November 25, 1897, establishing autononmy in Culla and Porto Rico provides (see constitution establishing selfgovernment in Cuba and Porto Rico, Trans. Div. Ins. Affrs.): ART. 61. The provincial and Inunicipal laws now obtaining in thle island shall continue in vogue (?) wherever not in conflict with the provisions of tlhis decree until the insular parliament shall legislate upon the matter. The decree of autonomy, however, made important changes in the existing law regarding municipal finances by providing as follows: Air. 52. * * * \Every legally constituted mlunicilpality shall have(, power toframe its own laws regarding public e(ucation, <" * * mllunicipal filnanes. * * Ain. 5;5. The mllunicipalities, as well as tlle provincial asselmblies, slall lave power to freely raise the necessary revenue to cove(r tlieir exlpen(litures, witlh 1o other limitation than to make the means adopted (compatilble witlh tlme general system of taxation which shall obtain in the island. The resources for provinclial appropriations slhall be ind(epen(lent of municipal resources. A\r. 62. No colonial statute shall abridge tlie powers vestedl by tlie preceding articles (52-62) in thle municipialities and Iproincial assemblllies. Alr. 69. 9 Every municipal measure for thle purpose of contracting a loan or a municipal debt slall be without effect, unless it be assented to by a majority of the townsp(eople whenever one-tliird of tlhe nuil)er of alderman slall so deman(l. The amount of the loan or delt which, according to the number of inhabitants of a township shall make tie referendum proceeding necessary, shall b)e determined by special statute. Fronm the foregoing it clearly appears that under Spanish sovereignty the municipalities of Porto Rico possessed the right to mlake loans and issue bonds therefor. Such rights as the municipalities possessed in matters of this character were retained upon cession of the island to the United States. The right of municipalities to enter into contracts and incur liabilities for the purpose of securing public improvements is in harmony with the character and institutions of our Government. Upon the change of sovereignty being affected, this right did not cease, but the municipalities continue to possess it. The broad ground on which this doctrine rests is as follows: The conqueror who acquires a province or town from the enemy acquires thereby the same rights which were possessed by the State from which it is taken. If it 461 formed a constituent part of-the hostile State, and was fully and completely under its dominion, it passes into the power of tie conqueror upon1 the salle footing. * * * The case, however, is different where the enemy possessed only a quasi sovereignty or limited political rights over the conqueredl rovince or town. The conqueror acquires no other rights than su(ch as bleloniged to the State against whichl he has taken up arms. "War," says Vattel, "authorizes him to possess himself of what belongs to his enemy. If lie ldeprives that enemy of the sovereignty of a town or province lie acquires it., such as it is, with all its limitations andl modifications. Accordinglv, care is usually taken to stipulate * * * that the towns and countries celded shall retain all their liberties, p)rivileges, and immunities.'" (Iallek's Int. Law, 3d ed., chap. 34, sec. 2.) The right under consideration is of such kind and character as bring it within the protection of Article VII of the late treaty with Spain. (Halleck's Tnt. Law, chap. 33, sec. 12.) In a letter to this Department, dated July 1 0, 1899, witli reference to the Dady contract with the city of Habana, CubaL, AttorneyGeneral Griggs says (22 Op. 527-52S): By well-settled pul)lic law, upon the cession of territory by one nation to another, either following a conquest or otherwise, those internal laws and regulations which are designated as municipal continue il force and operation for the government and regulation of the affairs of the people of said territory until thle new sovereignty inmposes different laws or regulations. Those laws which are political in theirnature and p)ertain to the prerogatives of the former Government immed(iately cease upon the transfer of sovereignty. Political and prerogative rights are not transferrel to tlhe succeeding nation. Such laws for the government of municipalities in said territory as are not dependent on the will of the formner sovereign remain inl force. Such laws as require for their complete execution the exercise of the will, grace, or discretion of the former sovereign would probably be held to be ineffective under the succeeding power. * * * Cuba, however, is now under the temporary dominion of the United States, which is exercising there, under the law of belligerent right, all the powers of municipal government. In the exercise of these powers the proper authorities of the United States may change or mnodify either the form or the constituents of the municipal establishments; mIay, in place of tle system and regulations that formerly p)revailed, sul)stitute new a(nd different ones. Upon this line, tlle samle authorities, exercising sovereignty over the islands, have the power to provide the methods, terms, and conditions under which municipal improvements, which relate entirely to property belonging to tile municipality or held by it for public use, may be carriel on. The old provisions of the Spanish law lmay be a(ldoted, so far as alpplicable, or they may be entirely dispenlsed withi, and a new system, set up in their place. The Imunicipal authorities of IIalaana, in the natter of engaging in the construction of I)ubllic works, mayI be permitted to pIroceed undier such law as is now applicable, if that b)e adequate, or they may, at the will of the military commilander, be restrained fronm engaging in any sucllh works. I am of the opinion that the provisions of the Spanish municipal laws of 18(96, modlified lby the decree of autonomy of 1897, under consideration herein, are in force in Porto Rico at the present time, and that it is unnecessary to reestablish them by order or otherwise. (American Ins. Co.. '. anter, 1 Pet., 542: Halleck's Int. Law, chap. 34, sections 14 to 24.) The procedure to he followed in this miatter is that prescribed by 462 the municipal law of 1896, modified by the decree of autonomy, and is as follows: 1. The project is to be submitted to the municipal council (ayuntamniento), a body consisting of the mayor (alcalde) and the councilmen, for its decision on the advisability of making the loan, and the terms and conditions thereof. 2. The matter being favorably acted upon by the aytntamnietto is then referred to the municipal board, a body composed of the ayalntantiento and the junta m)euicipal. The junta consists of "members, in equal numbers to councilors, appointed from among the taxpayers." (Art. 67.) 3. The matter is then to be advanced under the referendum proceedings required in article 69 of the decree of autonomy, as follows: Every municipal measure for the purpose of contracting a loan or a municipal debt shall be without effect unless it be assented to by a majority of the townspeople whenever one-third of the number of aldermen shall so demand. 4. The requirements of the Spanish law relating to publication in the Official Bulletin and the Official Gazette of public contracts and documents should be complied with. 5. Final action by municipal council, i. e., declaring existence of contract, signing, sealing, and issuing of bonds. 6. The bonds should be sold to the highest bidder and the proceeds placed in the public treasury. In 1896 the city of San Juan, Porto Rico, negotiated a loan of 500,000 pesos, for which the bonds of the municipality were given. The procedure followed was that above outlined, excepting as to the referendum. The decree of autonomy had not been issued, and under the law of 1896 the project was approved by the provincial deputation. In addition to selling the bonds and using the money realized to pay for the construction of public works, I believe the municipalities of Porto Rico may lawfully contract for public work and pay the contractor in bonds. The general law of public works for the island of Porto Rico provides: ART. 48. Municipal councils may construct their works by management or by contract, subject to the provisions of the present law concerning this matter, in connection with the works in charge of the state and of the province. (Trans. Div. of Ins. Affrs. p. 14.) Under Spanish regime in Porto Rico, when it was desired to construct a public improvement by contract and pay therefor in bonds, the proposition in regard to the bonds and all matters relating thereto were embraced in the contract proceedings, and known as the "economic" or financial branch of the project as distinguished from the "technical" or engineering branch. The "project" pursued the course prescribed for municipal contracts, which was essentially the 463 same as that herein described. Such differences as exist are not of sufficient importance to require recital and consideration at this time. The extent to which the exercise of said powers by municipalities may be regulated and controlled by the military authorities of the United States now in charge of the civil government of the island is considered to be sufficiently discussed in the quotation from the opinion of the Attorney-General. Without determining the questions discussed in the foregoing report, the Secretary of War decided to continue in force the order prohibiting the municipalities of Porto Rico from incurring indebtedness until such time as Congress, by appropriate legislation, should make provision for the exercise of authority by municipalities and other political subdivisions in Porto Rico. IN RE GRANTING MUNICIPAL FRANCHISES BY THE MUNICIPALITIES OF PORTO RICO. [Submitted October 9, 1899. Case No. 105, Division of Insular Affairs, War Department.] 1. The municipalities of Porto Rico were empowered by tile laws of Spain to grant concessions or franchises within their several territorial limlits where the privileges granted relate to the use and occupation of streets or other property owned in fee by the municipalities. 2. The rights of ownership, including that of alienation, possessed bly the mnunicipalities under the dominion of Spain, continued under military occupancy and after the cession of the island to the United States. 3. (General Orders, 188, A. C. O., 1898, is a regulation of tile exercise of the right; it does not affect the existence of the right. 4. The exercise of the rights of ownership over property by municipalities in Porto Rico while under the provisional government now in charge of civil affairs in the island should be in accordance with the requirements of said (General Orders, 188, A. G. 0., and the Spanish laws and regulations of municipalities in force in Porto Rico at the time the island was cededl to the United States, excepting such provisions as required the assent and approval of the officers of the Crown of Spain to the proceedings under said laws and regulations. 5. The provisional government now in charge of civil affairs in Porto Rico is a part of the government of each municipality in the island as well as of the government of the island considered as a whole. It is charged with the direction and control of the municipal powers as well as of tie sovereign powers of administration and execution, and in granting concessions the municipal authorities are subject to such conditions as may be imnposed by the provisional government. The treaty with Spain provides that the property rights of municipalities are to be respected the same as are those of individuals. (Article 8.) Halleck says: A municipality has the same rights as a natural person to dispose of its property during a war, and all such transfers are prima facie as valid as if made in time of 464 peace. If forbidden by the conqueror, the prohibition is an exception to the general rule of public law and nust l)e clearly established. (HIalleck's Int. Law, 3( ed., chap. 33, sec. 12; Kent's Corn. on Am. Law, vol. 1, p. 92.) Military occupation produces no effect on private ownership of property, and it follows as a necessary consequence that the ownership of such property may be changed during such occupancy precisely the same as though such occupancy did not exist. The right to alienate is incident to ownership, and, unless restricted by the victor, the right of alienation continues the same during military possession of the territory in which it is situated as it was prior to the military occupation. The possession of this right by the municipalities of Porto Rico is fully recognized by the United States, but its exercise has been restricted by General Orders, 188, A. G. 0., promulgating Executive order dated December 22, 1898, as follows: EXECUTIVE MANSION, WTashinrgton, December 22, 1898. Until otherwise ordered, no grants or concessions of public or corporate rights or franchises for the construction of public or quasi-public works, such as railroads, tramways, telegraph and telephone lines, waterworks, gas works, electric-light lines, etc., shall be made by any municipal or other local governmental authority or body in Porto Rico, except upon the approval of the major-general commanding the military forces of the rUnited States in Porto Rico, who shall, before approving any such grant or concession, be so especially authorized by the Secretary of War. WILLIAM McKINLEY. If prior to tr e tereatdy of cession. aC municipality in. P]orto Rico possessed property r(l.ts iln and to its streets or other lands', and possessed the p0ower' of alienation, such, power wotuLd coltinu e thereaftetr n til chan qgyed bly leqislature authority. The treaty of peace with Mexico (May 30, 1848) contained the same provisions in regard to the protection of property rights as are secured by Article VIII of the treaty of peace with Spain (December 10, 1898). (1U. S. Stat. L., vol. 9, p. 929, Art. VIII.) Prior to the invasion of California the pueblo or village of San Francisco existed, and, under the laws of Mexico, was entitled to the territory within certain prescribed limits known as "pueblo lands." It had also an a/,lntam'iento or town council and an alcalde. The (alcalde was the chief executive officer of the puel(o, and as such had authority to lake grants of the pueblo lands. The exercise of this function was subject to the authority of the town council and to the higher authority of the departmental governor and assembly. The claim was made that pueblo lands which had not been granted to individuals prior to the conquest became a part of the public domain of the United States, and, as such, subject to the exclusive control and disposition of Congress. The supreme court of California held, however, that such was not the effect of the conquest, but that the lands 465 continued to be the public property of the municipality as before the war, and that the laws of Mexico relating to the subject continued in force until changed by the legislative authority of the State. It was further held that an alcalde grant made after the conquest was presulmed to be valid and was competent to convey title. (Cohas v. Raisin, 3 California, 443; Hart v. Burnett, 15 California, 530; Payne & Dewey r. Treadwell, 16 California, 221; White r. Moses, 21 California, 34.) This doctrine is referred to and followed by the United States Supreme Court in Merryman r. Bourne (9 Wall., 592). This case arose in California, and as the doctrine was a rule of property adopted by the supreme court of that State it was binding upon the Federal courts; but the United States Supreme Court followed it without criticism and impliedly approved it. (See also Moore?r. Steinbach, 127 U. S., 70, 81.) It is well to call attention to the fact that the foregoing doctrine applies only to such property as belonged absolutely to the nunicipality before the change in sovereignty. A municipality would be powerless to alienate or affect the title to lands or other property which passed to the United States under the terms of the treaty of peace with Spain. In Moore v. Steinbach (127 U. S., 70, 81) the Supreme Court of the United States say: The doctrine invoked by the defendants that the laws of a conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by him does not aid their defense. That doctrine has no application to laws authorizing the alienation of any portions of the public domain or to officers charged under the former government with that power. No proceedings affecting the rights of the new sovereign over public property (can be taken except in pursuance of his authority on the subject. The laws of Spain fully recognize the right of cities, towns, and villages to acquire and dispose of real estate subject to the royal regulations which were made from time to time for that purpose. When once acquired by a municipality neither the Crown nor its officers can take away or grant to others any of these municipal lands. (Novisima Recopilacion, Lib. VII, tit. 16, law 1.) The manner of granting lands to towns and the manner in which they were allowed to rent and dispose of them was not uniform. It depended upon royal regulations. which were changed from time to itnle. At one period the towns could grant or sell them and at another they could only lease them. These grants, sales, and leases were always nltde by the municipal authorities, with the permission of the Crown, but neither the King nor the Crown officers could themselves dispose of the lands once granted to or acquired by the towns. Did thle m.?nicipalities of Ior'to Rico own t]Je fee of their st'reets under tlhe Spanlish re'ie? When a town is laid out under the general law of Spanish depend1394-03- 30! 466 encies, the title to the town site is secured by the pueblo or town, the location is platted, and the lots sold for the benefit of the town, the proceeds going into the town treasury. So much of the land as is dedicated to public use as streets becomes public property. The streets which are constructed and maintained with national funds belong to the State or Crown. The streets constructed and maintained with municipal funds belong to the municipality. The Spanish civil code provides as follows: ARTICLE 339. To public domain belong: 1. Those intended for public use as roads, canals, * * * and bridges, constructed by the State. * * * ARTICLE 343. The property of provinces and of towns is divided into property of public use and patrimonial property. ARTICLE 344. Property for public use in provinces and towns comprises the provincial and town roads, the squares, streets, fountains and public waters, the walks, and public Works for general service paidfor by the same towns or provinces. The Spanish code defines "ownership" as follows: ARTICLE 348. Ownership is the right to enjoy and dispose of a thing without further limitations than those established by the laws. Under the provisions of the Spanish law a municipality, by following a prescribed procedure, might burden the public property owned by the town with easements or concessions, or it could alienate it entirely. On February 27, 1864, the "general directive body in charge of the registers" decided that record is permissible of an instrument whereby a municipal council attempts to alienate in whole or in part the lands dedicated to public highways in a municipality. (Leves Civiles de Espanla, Madrid, 1893; Ley Hipotecaria, title 1, par. 2, note 2.) Under the laws of Spain the register of deeds and conveyances passes upon the title and legal effect of the instrument of conveyance before permitting the registration. If he decides that the title is defective or the conveyance unauthorized, he refuses registration. Thereupon an action may be commenced against him to compel registration. The action is in the nature of an appeal from the decision of an administrative officer and in a measure resembles a mandamus proceeding. The case above referred to was of this character, and the determination was in favor of the right of the city to alienate its rights to the streets. Independent of the question of owning the land occupied by the streets and the appurtenant right of alienation, the municipalities of Cuba were by Spanish law empowered to regulate and control the use of the streets maintained by them. Many franchises consist of the right to use a portion of the streets of a municipality for a certain purpose. Such a franchise does not ordinarily convey title; it simply permits use in a prescribed manner 467 for a desired object. The Spanish laws authorized the municipalities of Porto Rico to grant such permits. (Municipal Laws of Porto Rico, arts. 69, 70; General Laws of Public Works of Porto Rico, arts. 6, 10; Regulations for said Laws of Public Works, art. 91; Laws of Railroads for Porto Rico, arts. 28, 75; Regulations for said Laws of Railroads, art. 104; Leyes Civiles de Espalia, Madrid, 1893, Ley Hipotecaria, Title 1, par. 2, note 2.) Iibhat procedure is to >be followed in the ec.ercrise of the rigqhts of otw/nrsh)ip in property owned by mvtnicipoalities in P'orto Rico? The first step is to secure the permission to exercise said rights required by said General Order, 188, A. G. O., hereinbefore set out. The exercise of said rights being permitted, the municipality must act by and through its officers or agents. These officers are not authorized to dispose of the property of the municipality as though it belonged to them personally. They can dispose of said property only when authorized so to do by an existing law, and if the law prescribes a method for the exercise of such authority, that method must be pursued. Since the legislative branch of the United States Government has not acted upon this matter, it follows that such laws, if any exist, must be the Spanish laws in force at the date of the cession. It is a well-established doctrine that where territory is ceded by one sovereignty to another the laws of the former sovereign authorizing the alienation of any portion of the public domain and the authority of officers charged under the former government with that power pass away. (More v. Steinbach, 127 U. S., 70, 81; Ely's Admr.. United States, 171 U. S., 220, 230; United States v. Vallejo, 1 Black., 541; Harcourt e. Gaillard, 12 Wheat., 523.) In More v. Steinbach (127 U. S., 81) the court announce this doctrine, and base it on the proposition thatNo proceedings affecting tile rights of the new sovereign over public property can be taken except in pursuance of his authority on the subject. I am of the opinion that this doctrine is not involved herein. The streets owned by the municipalities of Porto Rico do not belong to the national public domain and are not public property in the sense that the sovereign has property rights therein. I am of the opinion that the Spanish laws under consideration are of such character that they remain in force, modified in the matter of regulation by the officers of the Crown of Spain. In Chicago, Rock Island and Pacific Railway Company v. McGlinn (114 U. S., 542) the court say (p. 546): It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country-that is, laws which are intended for the protection of private rights-continue in force until abrogated or changed by the new government or sovereign. By 468 the cession, public property passes fromn one government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceable use and enjoyment. As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus upon a cession of political jurisdiction and legislative power-and the latter is involved in the former-to the United States, the laws of the country in support of an established religion, or abridging thie freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws affecting the possession, use, and transfer of property, and designed to secure good order and peace in the community and promote its health and prosperity, which are strictly of a municipal character, the rule is general that a change of governmlent leaves them in force until, by direct action of the new government, they are altered or repealed. The difference between those laws which relate to the alienation of the public domain and those which relate to the exercise of the rights of ownership by municipalities is referred to by the court in More?. Steinbach. In that case the court held that the authority and jurisdiction of the Mexican officials in California terminated on July 7, 1846, and thereafter they "could do nothing that would in any degree affect the right of the United States to the public property." (127 U. S., 80.) 1ut the court further say: The cases in the supreme court of California and in this court which recognize as valid grants of lots in the pueblo or city of San Francisco by alcaldes appointed or elected after the occupation of the country by the forces of the United States (lo not militate against this view. Those officers were agents of the pueblo or city and acted under its authority in the (istribution of its municipal lands. They did not assume to alienate or affect thle title to lands which was in the United States (p. 81). In Merryman r. Bourne (9 Wall., 592, 601) the court say: The conquest of California by the arms of the United States is regarded as having become complete on tile 7th of July, 1846. On that day the Government of the United States succeelded to the rights and authority of the (overnment of Mexico. The domninion of the latter sovereignty was then finally displaced and succeeded )by that of tle former. Before that time the pueblo or village of San Francisco existed, and under the laws of tlhe country was entitled to the territory within certain p)reecribed limits, known as pueblo lands. It had also an ayuntamiento, or town council, and an alcalde. The alcalde was the chief executive officer of the pueblo, and as such had authority to lnake grants of the pueblo lands. The exercise of this function was subject to the authority lodged in the ayuntaniento, and to the still higher authority of the departmental governor and assemibl y. In the case of Woolworth v. Fulton it was held by the supreme court of the State that from the time of the conquest these pueblo lands, so far as they had not been granted to individuals, becamne a part of the public domain of the United States and, as such, subject to the exclusive control and disposition of Congress. This doctrine was subsequently overruled in the case of Cohas v. Raisin. It was there held that the conquest had no such effect, but that the lands continued to be the public property of the municipality, as before the war, and that the laws of Mexico relating to the subject continued in force until changed by the legislative authority of the State. 469 It was further held that an alcalde grant, made after the conquest, was to be presumed valid and was competent to convey title. These doctrines are now firmly established as a part of the rules of property of the State. In Townsend,r. Greeley (5 Wall., 326) the court say (p. 334): The treaty of G(uadalupe flidalgo does not purport to dlivest the p)ueblo, existing at the site of the city of San Francisco, of any rights of property, or to alter the character of the interests it may have held in any lands undler the former government. It l)rovid(es for the protection of tile rights of the inhabitants of the ceded country to their property; and there is nothing in any of its clauses inducing the inference that ally (distinction was to be ma(le witfh reference to the p)rolerty claimed by towns under the Mexican G;overnmnent. The subsequent legislation of Congress ldoes not favor any such supposition, for it has treated the claimis of suchl towns as entitled to the sanle protection as the claims of individ(uals, and has authorized their presentation to the board of conlmmissioners for confirmation. (See also Grisar c. McI)owell, 6 Wall.. 363.) The case of Palnler,. Low (98 U. S., 1) involved( conllicting claims of title to a. piece of groundl(1 ill San Francisco, Cal. The, c(ttrt sustaiiecd a title derive\ d ats follows: ()On tle 19thl of July-, 1847, (;eorge HIyde was thle duly qualifiedl anl acting alcalde of the pueblo of Sanl Francisco, and( as such. alcalde, oni tle d(1ay last mellnltioned, grante(l the prellises ill controversy to (;eorge D)onner, }y a grant( thereof (dly ma(le, recore(l, and (leli-vered by tile alcaldle. (I'. 5.) In Coh.s c. Raisill (3 California, 443), the court held (syllabus): Before thle mllilitary occupation of California by tile Arlmy of thle l'lited States, San Francisco) was a M:exican pueb)lo, or municilcal corp)oratioii, Iulid was invessted with title to the lands within ller bounldaries. The oc(culation aml subsequient acquisition of California by the l nite(l States (lid not suspen(l or (letermine any rigllts or interest of San F'rancisc(o inl such lands. The puel)lo retainedl (during thle war all its rights to municipal land(s whicht had been conferrel up)on it previous to the war. The right to alienate is incident to that of ownerslhip. The pueblo had the same right to (lispose of its pr(operty (luring the war as a natural person. In Welch r,. Sullivan (8 CaLlifornia, 165) the court held that in CaliforniaThe pueblos, under the laws of Spain and Mexico, had the right to (tisp)ose of certain lands within their limits, to defray municipal expenses. The municipal law remlained unchanged after the conquest until 1850, and grants of pueblo lands by American alcaldes were grants by the pueblo of its own property, which it had a right to transfer. In the body of the opinion the court say (p. 197): It is a misnomer to call these titles American alcalde grants. They were the grants of the pueblo of its own property, which it had the right to transfer by virtue of the municipal law which was continued in force by the new sovereign until 1850. (See, also, Dewey c. Lambier, 7 Calf., 347; Hart v. Burnett, 15 Calf., 530; Payne and Dewey v. Treadwell, 16 Calf., 232; White v. Moses, 21 Calf., 34.) Under Spanish law the town possessed the ownership, but the right to convey, which is ordinarily an inherent attribute of ownership, was 470 curtailed and made dependent upon the will of the King or his officers. Upon the sovereignty of Spain being expelled from the island of Porto Rico this limitation upon the right of the owner to transfer departed with the deposed sovereignty. The provisions of the Spanish law authorizing cities and towns to own and convey land and other property are in harmony with the political institutions of the United States and are continued in force in Porto Rico. The provisions of the regulations of the Crown of Spain that the right to transfer and convey can be exercised only by and with the consent of the King of Spain or his officers are not in harmony with the political institutions of the United States, but are odious thereto and inconmpatible witl the changed condition in Porto Rico. Therefore such regulations are no longer in force in that island. Therefore the municipalities thereof may alienate the land and other property owned by them in accordance with the provisions of the Spanish law relative thereto, saving and excepting the provisions requiring the assent or consent to such alienation by the Crown of Spain or its officers. While the authority of the officers of the Crown of Spain to direct and control the action of municipalities in these matters has ceased, the local officers of the municipalities are not without restraint in the exercise of their rights. By reason of the character of the provisional government existing in Porto Rico, the military authorities of the United States now in charge of said government are a part of the municipal government as well as the general government. Being a part thereof their action must be had in this and other matters. The extent of their powers in Cuba is set forth by Attorney-General Griggs as follows (see letter to Secretary of War, July 10, 1899): Cuba, however, is now under the temporary dominion of the United States, which is exercising there, under the law of belligerent right, all the powers of municipal government. In the exercise of these powers the proper authorities of the United States may change or modify either the form or the constituents of the municipal establishments; may, in place of the system and regulations that formerly prevailed, substitute new and different ones. Upon this line the same authorities exercising sovereignty over the island have the power to provide the methods, terms, and conditions under which municipal improvements, which relate entirely to property belonging to the municipality or held by it for public use, may be carried on. The old provisions of the Spanish law may be adopted, so far as applicable, or they may be entirely dispensed with and a new system set lp) in their place. (22 Op. 528.) The proceedings required in granting a franchise or concession by a municipality under the Spanish laws are (in general) as follows: The promoter presents a general project. If approved by the municipal council he prepares detailed plans and specifications. These being approved, their commercial value or price is fixed by appraisement. Advertisement is made that a concession or franchise for the execution of said plan will be sold to the highest bidder or the bidder offering the terms and conditions most favorable to the city, bids to be 471 received at a given time and place. Bids must be in writing and accompanied by 1 per cent of the estimated cost of the project. The original promoter has the privilege of being substituted for the best bidder. If he declines to be substituted, the original bidder must pay him the appraised value of the plans and specifications. The successful bidder then deposits 3 per cent of the estimated cost of the project as a guaranty of good faith, and the franchise is granted. The Spanish laws do not authorize municipal franchises which are exclusive or perpetual. They permit the use of streets or other public property in a prescribed manner for a designated purpose. With the exception of the provisions relating to the authority exercised by the officers of the Crown, said laws are in harmony with the political institutions of the United States. Relieved from the controlling influence of the Crown officials and subjected to the restraint of the provisional government now in charge of civil affairs in the island, said laws furnish an excellent means and method for disposing of municipal franchises and the regulation thereof. The provisions of said laws are known and understood by the inhabitants and officials of the municipalities. Their enforcement would create no'animosity. The relief afforded by freeing the exercise of municipal right from the dictation of the officers representing the Spanish sovereign would be universally understood and therefore more highly appreciated than if the old law were abrogated and a new law substituted. Without determining the questions discussed in the foregoing report the Secretary of War decided to continue in force the provisions of Executive order dated December 22, 1898 (G. 0., 188, A. G. 0., 1898), until Congress, by appropriate legislation, should provide for the exercise of authority by municipalities and other political subdivisions in Porto Rico. IN THE MATTER OF THE APPLICATION OF FERMIN SAGARDIA, AN INHABITANT OF PORTO RICO, FOR COMPENSATION FOR DAMAGES OCCASIONED BY HIS PROPERTY BEING STOLEN, INJURED, AND DESTROYED BY ROBBERS INFESTING THE LOCALITY OF HIS RESIDENCE. [Submitted November 23, 1899. Case No. 1087, Division of Insular Affairs, War Department.] The amount demanded by this applicant is $24,345. It is not claimed that the loss was occasioned or the damages inflicted by the United States troops, agents, or representatives. It is admitted that the loss was occasioned by robbers and bandits. Therefore the facts are not sufficient to constitue a claim for lawful damages or equitable relief in favor of the applicant and against the Government of the United 472 States or the military government now in charge of civil affairs in Porto Rico. The military governor of the island reports that "there are a considerable number of claims similar to this." The military governor further says in his report herein: "The statenient has been made that the aggregate of these losses in Porto Rico may reach several million dollars." It is readily perceived that if a solvent government undertook to reimburse the inhabitants of its country for losses occasioned by theft and other unlawful or criminal acts of lawless persons, the bona. f(ie claims would soon aggregate millions of dollars, while the n(ala fide claims would be limited only by the cupidity of claimants and the credulity of the government officials. 'But such indemnity is not afforded by any government either in time of peace or war. That such is the rule must certainly be known among the people of Porto Rico. If a contrary rule should be adopted it would of course be very gratifying to those who have suffered losses of this character and to those who would willingly perpetrate a fraud upon this Government which would benefit them financially, but the proposition involved is as preposterous as the results of such adoption would be deplorable. The claim should be rejected. General Davis in his indorselment herein says: If it is desired that any investigation be lmade as to the extent of these losses, etc., instructions are requested, The investigation of such claims gives them a certain dignity and leads the claimant to expect favorable action and induces others to make similar claims. This should not be tolerated, much less encouraged. The officers of the'United States Army and other persons engaged in the conduct of the affairs of the provisional government of Porto Rico should not be employed in the useless task of investigating claims of this character. General Davis manifestly entertains this view and will doubtless be pleased to learn that this Department sustains it. The action of the War Department on this claim was as follows: DECEMBER 1, 1899. SIR: Referring to the claim of Fermin y Sagardia for reimbursement of the amount of alleged losses occurring through the depredations of robbers and other crininals, submitted by your reference of September 30 last, I have the honor to invite your attention to the inclosed copy of an opinion of the law officer, Division of Customs and Insular Affairs, which is approved by this Department. Very respectfully, G. D. MEIKLEJOHN, Assistant Secretary of Wcer. Brig. Geni. GEO, W. DAVIS, Military Goternor of forto Rico, San Juan, P. R. 473 IN THE MATTER OF THE ADMINISTRATION OF THE ESTATE OF RAMON MARTI Y BUGUET, A NATIVE OF TARRAGONA, SPAIN, WHO DIED AT BEAZ, SANTA CLARA, WITHOUT LEAVING A WILL. [Submitted March 19, 1900. Case No. 1075, Division of Insular Affairs, War Department.] SIn: I have the honor to acknowledge your request for a report on the above-entitled matter, and in pursuance thereto I have the further honor to submit the following: On July 2, 1899, a Spanish subject named Ramon Marti y Buguet, a native of Tarragona, Spain, died, intestate, at Beaz, Santa Clara, Cuba, leaving an estate the value and amount of which does not appear in the papers filed herein. On the 15th of July the Spanish consul at Cienfuegos, having learned of the death of Marti, addressed a letter to the judge of Santa Clara, requesting that his consulate be permitted to administer upon the estate of the intestate. The Spanish consul based his request on article 44 of the alien law, put in force in the island of Cuba while Spanish dominion prevailed therein. (Translation of article 44 hereto attached, marked "Exhibit A.") The court refused to comply with the request of the Spanish consull, and the estate was administered upon in accordance with the laws regulating the administration of estates of deceased natives of the island. The court at Santa Clara based its refusal to comply wNitl the request of the Spanish consul upon two grounds: First. That it was not made to appear that the deceased had declared his intention, before a court of record, to continue his allegiance to the Crown of Spain, and therefore must be adjudged to have adopted the nationality of the territory in which he resided at the time of his death. Second. That under Article XI of the treaty of peace with Spain (1898) Spaniards continuing to reside in the island of Cuba remain subject, in civil and criminal matters, to the jurisdiction of the courts of the country in which they reside, in accordance with the ordinary laws in force therein, in the same manner as citizens of the country. The Spanish minister at this capital called the attention of the Government of the United States to this matter by letter to the Secretary of State. The Spanish Government, being unwilling to concur in the decision of the court at Santa Clara, requested the Government of the United States to annull the orders made regarding said estate by the judge of that court. The State Department transmitted said letter to the War Department. In the letter of transmittal the honorable Secretary of State says: The Department commends the note to your early and, if possible, favorable consideration, in view of the apparent soundness of the ground on which the Spanish minister's contention rests. 474 The matter was referred to Major-General Brooke, then in comiland in Cuba, for a report thereon. Major-General Brooke referred the matter to his secretary of justice, who reported in favor of sustaining the action of the court of Santa Clara. Upon assuming command in Cuba Major-General Wood referred this matter to the new secretary of justice, who reported that he agreed with the report made by his predecessor and recommended that the action of the court of Santa Clara be sustained. The matter is now presented to this Department for final determination by the Secretary of War. I am of opinion that the judge of the court at Santa Clara was right in proceeding to administer upon this estate, but wrong in his conclusion that the deceased, by failing to declare before a court of record that he intended to adhere in allegiance to the Crown of Spain, must be held to have renounced such allegiance. When the Government of Spain, in order to end the unhappy condition of war, determined to withdraw its dominion from the island of Cuba and submit the island and its inhabitants to the custody of the United States, it was not unmindful of the fact that many persons residing in the island desired to continue their allegiance to the Crown of Spain. The Spanish Government very properly desired to protect and preserve the personal and property rights of such residents. The Government of the United States, with equal propriety, consented to this laudable undertaking; hence arose the provisions of the treaty of peace in regard thereto, found in articles IX, X, and XI, which are intended to guarantee to Spanish subjects remaining in the islands certain rights and privileges. These articles are as follows: ARTICLE IX. Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration -of their decision to preserve such allegiance, in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress. ARTICLE X. The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of their religion. ARTICLE XI. The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignty shall be subject in matters civil, as well as criminal, to 475 the jurisdiction of the courts of the country wherein they reside, pursuant to the ordinary laws governing the same; and they shall have the right to appear before such courts and to pursue the same course as citizens of tile country to which the courts belong. It will be noticed that Article IX guarantees Spanish subjects residing in Cuba the right to continue allegiance to the Crown of Spain and still remain in said territory, retain their rights of property, and to engage in business. These rights have not always been conceded to the inhabitants of territory which is surrendered as a result of war. Upon the cession of Alsace and Lorraine by France to Germany those inhabitants who desired to retain allegiance to France were required to leave the country. Article IX also provides that Spanish subjects continuing in the territory surrendered shall "have the right to carry on their industry, commerce, and professions, beily stbject in respect t/he('eof to s;uch aws a.s (re apj)ibcable to otlier foreigncrs." Article XI provides that Spanish subjects retaining their allegiance to Spain and remaining in the island shall be subject to the jurisdiction of the courts of the country wherein they reside and shall have the right to appear before such courts and to pursue the same course as c;ti.zens (:f the countlry to which the courts belong. This article makes it impossible to deny to Spanish residents the right to appear in the courts of the country and demand and receive a hearing therein on an equal. footi;n/ with the qatib"e c;itize2s. Many nations refuse this privilege to aliens. The right to invoke the powers of the courts is a privilege essential to the protection of all rights. The Spanish Government manifestly desired that its subjects domiciled in the territory surreindered should possess and retain this right and that in its exercise Spanish subjects so domiciled should have absolute equality with the native citizens. In the marts of trade in Cuba a Spanish subject is a foreigner and his rights are limited by existing or future laws regulating the acts of grace by which a foreigner is permitted to engage in the commerce of the island. But in the courts a Spanish subject resident in Cuba has all the rights of a native citizen. Correlatively, such Spanish residents are subject to the jurisdiction of said courts. When a man dies it becomes the duty of the authority charged with providing the protection which civilized government affords to take charge of his estate and see that it is disposed of, either in accordance with letters testamentary of the deceased or turned over and accounted for to his heirs. This duty is equally binding whether the man be a citizen, an alien, or a public enemy. Taking possession of the property is amply justified as an exercise of what is known as the police power of the state, but such exercise of authority is ordinarily considered an exercise of the right of the sovereign as parens patrim'. 476 In discharging the duties binding upon it as parens patricw the sovereign utilizes the courts. The duties become incumbent upon the pareis patrice at the instant the proprietor of the estate dies, and therefore the right of the court instantly attaches, and thereupon the estate is considered as being in the "lap of the law." - The legal status or standing in court of the estate is the same as was the standing in court of the individual at the time of his decease. What is the standing of a Spanish subject in the courts of Cuba? The test is supplied by the treaty, and the question is to be determined by the fact of his residence. If a Spanish subject is a resident of Cuba, his standing in court is the same as that of a native citizen of the island, and upon his death his estate comes into the custody and keeping of the courts of the island the same as would the estate of a deceased native. Attention is directed to the fact that a Spanish subject not a resident of Cuba, but temporarily sojourning therein, is to be considered a foreigner, and his estate would be dealt with as would the estate of other foreigners. But a permanent resident who yields allegiance to the Crown of Spain is not so considered, nor can his estate be dealt with as that of a foreigner. As has already been stated, the duty to protect the estates of deceased persons is incumbent upon the government, and the government in performing such service acts through the courts. These courts exist in the various communities tlhroughout the island. To deny themn authority in the first instance over the estates of persons dying in the island would render it impossible for the government to discharge the obligation; for in the absence of authority to take charge of the estates the property would be exposed to the cupidity of the lawless until a consul learned of the death and could proceed to reduce the property to his possession or to that of his agent. If the deceased Spanish subject was not a resident of Cuba at the time of his death, the court would still possess authority to take possession of his estate, but would be required to surrender it, upon demand, to the Spanish consul. If the foregoing views are correct, it follows that upon demand being made by the Spanish consul for a surrender by the court of the estate of Marti, the question as to whether or not the jurisdiction of the court continued, was to be determined by the fact of residence and not the citizenship of the deceased at the time of his demise. II. In passing upon the question of the citizenship of the deceased the court of Santa Clara held as follows: Considering, first, that there is no evidence to show that Don Ramon Martf had obtained the registration required by article 9 of the treaty of Paris, concluded between Spain and the United States on the 10th December of last year, in order to retain his Spanish nationality, and considering that, until such registration is proved by record, he must be regarded as a native of Cuba and, consequently, sub 477 ject only and exclusively to the provisions of the law of civil procedure and the civil code now in force. (See letter of Spanish minister to Secretary of State, p. 2, Doc. 1.) I think this holding of the court of Santa Clara is contrary to the provisions of the treaty of peace with Spain (1898). The provisions of the treaty regarding the continuing in allegiance to the Crown of Spain by Spanish subjects residing in the islands are as follows: In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year of the date of the exchange of ratifications of tllis treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to adopt the nationality of the territory in which they may reside. (Article IX.) It is a fundamental doctrine of the theory of government prevailing in the United States that a man has the inherent right to tender his permanent allegiance to such sovereign as he sees tit and to bestow his allegiance upon such sovereign as sees fit to accept his tender. (Secs. 1999 and 2000, IT. S. Rev. Stat.; 8 Op. Atty. Gen., p. 139; 9 Op. Atty. Gen., p. 356.) The provisions of the treaty with Spain, above quoted, prescribe the rule of evidence b} which is to be determined the question of whether or not Spanish sulbjects continuing to reside in said territory have consented to the transfer of their allegiance. Under this rule they are given a year from the date of the exchange of ratifications to declare their decision in the matter. The presumption that they have consented to a change of allegiance does not arise until there is a default in making such declaration. They can not be held to be in default until the time lhas expired in which they may mlake the declaration. The ratifications of the treaty were exchanged at Washington, April 11, 1899. Consequently Spanish subjects residing in Cuba can not be held to te in default of making such declaration until April 11, 1900. I therefore recommend that the Secretary of State be advised that the War Department entertains the view that the court of Santa Clara properly held: 1. That said court had jurisdiction to institute proceedings to administetr upon the estate of Don Ramon Martf, deceased. 2. That the jurisdiction of said court was not ousted by the demand of the Spanish consul if the siid Doni Ramon Marti at the time of his death was a resident of Santa Clara, Cuba. That the War Department does not agree with the holding of the court of Santa Clara1. That a presumption arises that said Don Ramon Marti had changed his allegiance from the fact that he had not, prior to July 2, 1899, declared his intention to retain his allegience to the Crown of Spain before a court of record. 478 This case was referred to the Attorney-General, who was of opinion "that to oust the consul altogether, as was done in the matter of the estate of Don Ramon Marti y Buguet, and proceed without him, was to proceed without jurisdiction." (See letter to Secretary of War, dated April 26, 1900.) By direction of the Secretary of War on June 8, 1901, the opinion of the Attorney-General was communicated to the military governor of Cuba, with instructions to require the court at Santa Clara, Cuba, to carry out the views set forth in the opinion of the Attorney-General. IN RE ESTATE OF JACOB DUBUQUE, DECEASED, AND THE ADMINISTRATION THEREOF BY THE MILITARY AUTHORITIES OF THE UNITED STATES AT CIENFUEGOS, CUBA. [Submitted October 13, 1900. Case No. 1025, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge the receipt of your request for a report on the above-entitled matter, and in compliance therewith have the further honor to report as follows: The case arises as follows: On June 26, 1900, one Jacob Dubuque, a citizen of the United States, died at Cienfuegos, Cuba, leaving personal property and real estate valued at about $30,000. Deceased died intestate. At that time Maj. George L. Brown, Tenth Infantry, U. S. A., was the collector of customs at the port of Cienfuegos. Major Brown, assuming the duties imposed upon United States consuls by Article XIII, paragraph 385, United States Consular Regulations, took possession of said estate and appointed Capt. W. B. Barker, U. S. V., and Henry A. Darling, resident manager of the North American Trust Company, to assist him in making an inventory of the estate. What further progress was nmde, or action taken, does not appear in the papers filed herein. In taking possession of said estate and proceeding to administer thereon Major Brown considered that he acted within the authority conferred upon him as a collector of customs by circular No. 16, Division of Customs and Insular Affairs, War Department, dated Washington, May 11, 1899. The matter of this estate was still unsettled on August 1, 1900, when Major Brown was relieved as collector of customs at Cienfuegos by Capt. James Baylies, Tenth Infantry, U. S. A. From the letter, dated August 16, 1900, written by Captain Baylies, as collector, to Colonel Bliss, as head of the customs service in Cuba (Document 1), it appears that on retiring from the office of collector of customs Major Brown nominally turned over said estate to the new collector, Captain Baylies, but in reality is still managing the affairs thereof. Captain Baylies doubted his authority to take possession of said 479 estate and assume the powers of administration thereover under the provisions of said circular No. 16. tIe referred the question to Colonel Bliss, who adopts the view that said circular No. 16 does not confer the necessary authority. (See 1st end. Doc. 1.) Colonel Bliss advances the matter through ililitary channels, with the following indorsenment: I therefore request the decision of the Secretary of War as to whlether collectors of customs in Cuba should or are expected to assume any such functions as those imposed by Article XIII of the Consular Regulations, as undertaken by the collector of customs at Cienfuegos in the case in question. Colonel Bliss instructed Captain Baylies to perform the duties assumed by Major Brown until the decision of the Secretary of War was received. Article XIII of the United States Consutar Regulations is a reproduction of section 1709 of the Revised Statutes of 1878, as follows: SEC. 1709. It shall be the duty of consuls and vice-consuls, where the laws of the country permit: First. To take possession of the personal estate left by any citizen of the United States, other than seamen belonging to any vessel, who shall die within their consulate, leaving there no legal representative, partner in trade, or trustee by himn appointed to take care of his effects. Second. To inventory the same with the assistance of two meirchants of the United States or, for want of them, of any others at their choice. Third. To collect the debts due the deceased in the country where lie diedl and pay the debts due froln his estate which lie shall have there contracted. Fourth. To sell at auction, after reasonable lulblic notice, sLuch part of tile (state as shall be of a perishable nature, and such further part, if any, as sliall be necessary for the payment of his debts, and, at tile expiration of onel year froin his (lecease, the residue. Fifth. To transmit the balance of the estate to the Treasury of thie United States, to be holden in trust for the legal claimant, except that if at any time before such transmission the legal representative of the deceased shall appear and (lemanll his effects in their hands they shall deliver them up, being paidl their fees, and shlall cease their proceedings. Circular No. 16, Division of Customs and Insular Affairs, War Department, is as follows: CIRCULAR NO. 16, WAn DEPARTMiENT, Division of Customs and Insular Affairs. J Iashingtoo, Mlay 11, 1899. The following is published for the information and guidance of all concerned: Collectors of customs appointed by the military authorities of the United States at ports in territory under military government are hereby directed to perform the duties formerly belonging to United States consuls or consular officers in such territory, so far as concerns seamen, vessels, clearances, etc. *- * * * * * * This order was necessary to enable the territories subject to the military governments to engage in commerce with the United States and other nations. I understand that actions of said collectors in performing the duties 480 formerly belonging to consular agents in matters relating to commerce are recognized by the custom-house officers of the United States and of other nations. It will be noted that said circular authorizes the collectors of customs affected to perform the duties of United States consuls or consular officers "so far as concerns seamen, vessels, clearances, etc., " and therefore limits the authority of such officers to matters involved in the commerce of the country, and does not authorize them to perform the duties of United States consuls in administering upon the estate of a deceased American citizel. This want of authority may be remedied by another order conferring such authority upon the collectors of customs. A draft for such an order is herewith submitted. This draft follows the language used in section 1709, Revised Statutes of United States, above quoted, with additional requirements regarding reports in regard to the action taken bv them. If such order is issued, it should be communicated to the Treasury Department for its information and files. It would also be well to call the attention of the collectors to the necessity of observing that in such matters they do not act as consular agents of the United States, but as Inited States collectors of customs, and in signing their names while so acting should add: Acting under authority conferred by Order No. —, War Department, dated Since said collectors are not United States consular agents, they are not required to report to the State Department. The State Department has already refused to receive or consider a report on such matters made tby the collector of customs at Iloilo, P. I., basing its refusal on the fact that he was not an actual or acting consular agent of the United States. (Letter from Secretary of State to Secretary of Wa.La, January 29, 1900. Estate of Mortimer Cook.) Some confusion was occasioned in this I)epartment by the refusal of the State Department to receive the report of the collector of customs at Iloilo on the adminiistration of the Cook estate. It was 'at first understood that the refusal was intended as a denial of the right of the c-ollector to perform the service for the reason that it was now impossible for the UTnited States to have consular agents in that territory. Upon review of the subject and more extended inquiry and investigatiol, it appears that the refusal was made because the State Department held the view that in such matters the collector did not act as an attach6 of the State Department nor as a representative of that Department, but acted as the representative of theWar Department, to which he should make report. The collector in that instance signed the report as "Acting United States consular agent," which was erroneous. (See Dept. letter to Colonel Bliss, collector of customs for Cuba, July 20, 1900.) 4(1 The laws of the United States do not require United States consular agents to report their proceedings in the administration of estates to the State Department. Such reports are made pursuant to an established practice. Pursuant to the foregoing report. the Secretary of War issued the following circular: Circular No. 45. AVAR DEPARTMENT, Division of Insular Affairs. J 1'Washington, December 26, 1900. The following is published for the information and guidance of all concerned: Such persons as may be duly designated for that purpose by the military governor of Cuba are hereby authorized and directedFirst. To take possession of the personal estate left by any citizen of the United States, other than seamen belonging to any vessel, who shall die within territory sulbject to the military government of Cuba, leaving there no legal representative, p)artner in trade, or trustee by him appointed to take care of his effects. Second. To inventory the same, with the assistance of two merchants of the United States, or, for want of the-m, of two others at the choice of the person designated to take charge of said estate. Said inventory shall be in triplicate, two of which shall be forwarded through the military channel to the military governor, who shall retain olte andl forward one to the Secretary of War, the admlinistrator retaining the third. Third. To collect the debts due the deceased in the country where he died, and to pay the debts due from his estate which lie shall have there contracted. Fourth. To sell at auction, after reasonable publlic notice, such part of the estate as shall be of a perishable nature, and such further part, if any, as shall be necessary for the payment of his debts and tIle costs of administration, the remainder to be retained and preserved until the Secretary of War slall determine what action s lall be taken thereon. Fifth. If the amount realized fromn the sales provided for in paragraph fourth shall be il excess of the sum necessary to pay the delts of the deceased contracted in that country and the costs of admlinistration, the balance shall be transmnitted to the Inilitary governor, who shall transmit the same to the Secretary of War for deposit in the Treasury of the United States, there to be held in trust for the legal clainmant; except that if at any time before such transmission the legal representative of the leceased shall appear and delmand his effects in their hands, they shall deliver them up. being paid their fees, and shall cease their proceedings. Sixth. The military governor of Cuba will designate a person or official in each municipality who, upon receiving information of the decease of an American citizen in said municipality, shall inmmediately communicate information thereof to the military governor of Cuba, the Secretary of War, and the relatives or friends of the deceased whose address is ascertainable. This order to be duly proclaimed and enforced in Cuba. ELIHU ROOT, Secretary of TWar. 1394-03 - 31 482 IN THE MATTER OF THE APPLICATION OF SAM WING, A CHINESE MERCHANT, DOMICILED IN PROVIDENCE, R. I., FOR AN ORDER DY THE SECRETARY OF WAR PERMITTING HIM TO ENTER THE PORT OF MANILA, P. I., AND THENCE PROCEED TO ILOILO, TO THERE ENGAGE IN BUSINESS AS A MERCHANT. [Submitted, July 13, 1900. Case No. 1802, Division of Insular Affairs, War Department.] SIR: I have the honor to report upon the above-entitled matter as follows: This matter was first presented to the Department on June 8, 1900, by lion. E. W. Roerts, member of Congress, from Massachusetts, who applied orally to the Assistant Secretary for the desired order. The Assistant Secretary referred him to the writer for information as to the course to be pursued. Mr. Congressman Roberts stated, orally, that Challis & Eaton, a well-known and reputable firm, doing business at 146 Franklin street, Boston, Mass., dealers in "Yankee notions,' were desirous of introducing their goods into the Philippines. For this purpose the firm had made arrangements to establish in business at Iloilo a Chinaman namled Sam Wing, who has been in America since 1875, and for the five years last past a merchant, dealing in Chinese goods, in Providence, 1. I. (See letter from Roberts,. C., received July 13, 1900.) These arrangements contemplate that in the latter part of July, 1900(, said Sam Wing will depart from Providence, R. I., go to Montreal, Canada, thence to Vancouver, and from there sail to Hongkong, where he contemplates remaining for a short period, visiting his parents, family, and friends. Froml Hongkong he desires to go to Manila and from there to Iloilo, to remain and engage in said business. The interested parties fear that upon arriving at Manila he will not be allowed to enter that port or proceed to Iloilo. It was agreed that prior to action being taken herein by the Secretary, and as a basis for action, it would be necessary to make a showing establishing the identity of the person of said Sam Wing, the fact of his having been in America for years past, that he was a merchant, and his purpose in going to the Philippines. This showing is now made and presented to the Department. It fails to show that Messrs. Chillis & Eaton are interested in the venture, but the omission is probably a measure of precaution intended to prevent possible liability in connection with the business. The military order prohibiting Chinese immigration into the Philippines provides for certain exemptions, as follows: There will be exempted from the above restrictions the parties named in article 3 of the convention between the United States of America and the Empire of (hina, published in Supplement to the Statutes the isel ttut th Unite 1 States, volume 2, 483 pages 155-157, to wit: Chinese officials, teachers, students, merchants, or travelers for curiosity or pleasure. The comling of these classes of Chinese will be permitted upon production of a certificate from their G(overnment or the government wlhere they last resided, vised by the diplomatic or consular representative of the Tnited States in the country or port whence they depart, supplemented by such further proof as is required in section; of an act of Congress approved July 5. 1884. The applicant herein, Saml Wing, shows by affidavit that he is a mlerchant, and has for more than five years last past been domiciled in Providence, R. I. The showing is sufficient to establish the fact of his belonging to an exempted class. But the order requires that the fact be established in a certain way, to wit: "A certificate from their (Governtent or the government where they last resided, vis'(d by} the diplomatic or consular representative of the United States in the country or l)ort whence they depart." The Utnited States Government does not maintain a diplomatic or consular representative in Providence, R. 1. The United States does maintain a consul at Vanlcouver. I suggested to M1r. Congressman Roberts that he secure for Sam WAing, froml the Treasury Departmlent or the State Department, a certificate that he (Wing) is a merchant. This certificate could then be ';.(,W by) the American consul att Vancouver and would substantially comply with the requirements of the order. The Congressman stated that application had been made to the Treasury Department, and the Department declined to issue such certificate in the absence of a statute authorizing it; that the Treasury had to deal only with the Chinese entering and leaving the ports within the recognized boundaries of the United States; and as to them, the showing was made before a collector of customs, and consists simply in establishing the facts, no certificate being issued. The difficulty seemns to arise from the fact that the portion of the order quoted is a literal transcript of a similar provision in the Chinese-exclusion law of the United States, transcribed without provision for meeting the conditions arising fror the peculiar relation existing between the Philippines and the United States. Under these circumstances the parties in interest deemed it advisable to apply directly to the Secretary of War for an exercise of his authority to permit this man to enter. This course is certainly direct and adequate. Attention is directed to the fact that a large proportion of the population of the Philippines speaks the Chinese language, and that a Chinaman who has resided in America since 1875 could, if he desired, disseminate much valuable information among the inhabitants of the islands. A merchant desirous of promoting an American enterprise would naturally desire the restoration of peace in the islands. So long as Chinese merchants from all other countries are permitted to enter the islands there would seem to be no sufficient reason for excluding one from the United States. 484 Pursuant to the foregoing report, the Secretary of \War issued the following: Maj. (Gen. ARTHUR i MACARTHUR, U. S. V., Colmmanding Di'isio,, of t1ie PhiliplJpie.s. SIR: YOU are requested to permit the bearer, Sam Wing, an English-speaking Chinese merchant, late of Providence, R. I., U. S. A., to enter the l'hilippines at the port of Manila, and thence proceed to Iloilo to engage in business as a merchant; providel the said Sam Wing, as a means of identification, shall present with this letter a certain affidavit subscribed and sworn to by him on July 6, 1900, before Edwin D. McGuinness, notary public, Providence, R. I., and attested by the seal of said notary; also photograph of said Wing, attached to said affidavit; also certificate of Walter N. Butler and Edward Wise, two citizens of Rhode Island, reciting their acquaintance with Saim Wing and the fact that he is a merchant and has been one for more than five years last past; which certificate is also verified by the signature and seal of said Edwin D. McGuinness, notary public. ELIIIu ROOT, Necret(r q oft' irv. IN THE MATTER OF THE APPLICATION OF THE BOARD OF HARBOR WORKS OF PONCE, P. R., TO THE GOVERNMENT OF THE UNITED STATES, ASKING FOR THE ASSISTANCE OF THE GOVERNMENT OF THE UNITED STATES IN SECURING THE PAYMENT OF A CLAIM ASSERTED BY SAID BOARD OF HARBOR WORKS OF PONCE AGAINST THE GOVERNMENT OF SPAIN FOR THE SUM OF 27,503.06 PESOS. [Submitted February 26, 1900. Case No. 1298, Division of Insular Affairs, NWar Department.] SIR: I have the honor to acknowledge your request for a report in the matter of the application of the board of harbor works of Ponce, P. R.. to the Government of the United States, asking for the assistance of the Government of the ITnited States in securing the payment of a claim asserted by said board of harbor works of Ponce against the Government of Spain for the sun of 27,503.06 pesos. In compliance with your request I have the honor to report as follows: Under Spanish dominion in Porto Rico there existed in the city of Ponce what was known as "The board of harbor works of Ponce." Said board was created pursuant to the provisions of article 26 of the harbor law of the island of Porto Rico, which (translated) is as follows: The Government mlay provide for the cost of works in harbors by mneans of special taxes levied in the locality, to be exclusively applied to said works, independently of the general State budget, and organize boards of harbor works charged with the administration and disbursement of funds and the execution of the works, under the supervision and vigilance of the minister of the colonies. As a means of securing funds to carry on the harbor works the said board was authorized to reclaim lands from the sea and lease or sell said lands. The board also derived an income from the state, the provincial deputation, the municipality, and a local tonnage tax. 485 The board was a corporation. None of its funds coulcd be used without the consent of the board and only upon t written order signed by the president and secretary. The funds belonging to the board were not converted into the public treasury, lbut were deposited in a local b)ank. On October 2, 1897, the lieuteinalt-goverllor of the island, tll officer of the Crown of Spain, issued tin order reqluiring the board of harblor works of P'once to deposit the suml of 27,5()3.()6 pIesos with the Spallnish c ollector' of customsl, at Ponce, whichI order was o)eyed. Shortly after the invasion of Porto Rico by the military forces of the United States, and while the city of l'once was subject to military occuI)ation }by the military forces of the United States, the b)oard of harbor works of Potlce applied to the Spanish ministry of finance at San Juan, P. RI., for the return of said 27.5)3.06 pesos. The board now assert that on September 30, 1898, the Spanish ministry of finance declined to make said restitution for the sole an(ll only realson that the city of Ponce, and consequently its (boa)trd of harbor works, were under the authority and dependency of the Government of the UTnited States, and for that reason the ministry considere(l itself nlot authorized to order the restitution, as such action otught to l)e ma(lde in sllie other way and through the two (Goernenlllllts, to wit, the ITnIited States and Spain. t'rpon Porto Rico being evaclltlted }by the forces of Spain, this sllll of 27,5()3.06 pesos wats carried away 1}, thle Spanish oefficrs. At least it was not returned to the -)oard of ltth:rbor wvorks of 1Ponce. The!board of harbor works of Ponce noNw solict the 'iUnite(l States (overnlment to enter upon negotiations Nwith the G(overn\'ilnlent of Spain for the purpose of securing the restittution of said an!loount so exacted fronl it. If the facts are <as represented )by the harbor )oard, it would seen that their claiml is just and well founded and that it is right and proper for the tUIited States to undertake tan atllicable adjustment of the clainm witll the Governllent of Spain, since the United States is charged with protecting the foreign relations of the island of Porto Rico. Such negotiatiolls are to be co!nducted by the State D)epartmlent, and are without the )1province and juiisdiction of the War Department. The matter, therefore, rests with the discretion of the Secretary of State. I recomlmend that the papers })e forwarded to the Secretary of State for such action as he may deemnl proper. The views set forth in the foregoing report were approved by the Assistant Secretary of War, and on Malrch 6, 1900, the papers were transmitted to the State i)epartmnent for such action as that Department should c(onsider advisable. 486 IN RE APPLICATION TO THE PRESIDENT, BY JUAN B. CALERO, TO SET ASIDE AND ANNUL CERTAIN JUDGMENTS RENDERED BY THE COURTS OF CUBA PRIOR TO AMERICAN OCCUPATION OF THE ISLAND. [Submitted June 1, 1900. Case No. 1273, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge the receipt of your request for a report on the above-entitled matter, and in response thereto I have the further honor to report as follows: It is not necessary to review the litigation to which this application relates further than to state that it consisted of a series of actions, both civil and criminal, which occupied the attention of the courts of Cuba for nine years (1887-1896). The original action was a civil one, and out of that controversy grew a number of others, ancillary or related, in which were involved numerous criminal charges. The last of the series reached final judgment and the judgment became absolute May 22, 1897, nearly two years prior to American occupation of Cuba. Pursuant to the purposes of occupation, the government instituted by- the United States organized the court known as the supreme court of the island of Cuba, and said court was opened on June 2, 1899. Into this court came the petitioner herein, Juan B. Calero, and instituted an original action attacking the judgments rendered by the Spanish courts in the several suits above referred to, and sought to have the new supreme court revise or annual said judgments on the ground that they were obtained by fraud, perjury, maladministration, official corruption, and divers other high crimes and misdemeanors on the part of his adversaries, the judges of the courts in which the judgments were rendered, and other officials connected with the administration of justice under Spanish dominion. The supreme court of Cuba dismissed the bill, and thereupon Calero presented this application to the President for the purpose of inducing the President to revise the action of said supreme court of Cuba. Without discussing whether or not the President, as Chief Magistrate of the United States or as Comlmander in Chief of the Army, is authorized to review and revise or annual a judicial determination of the present courts of Cuba, it appears sufficient for the determination of this application to direct attention to the fact that the purpose of the proceeding now under consideration is to annual judgments rendered by the Spanish courts of Cuba, with respect to which there was no recourse or right of review under the Spanish law at the time of the exchange of ratifications of the treaty of peace with Spain. Article XII of that treaty provides as follows: Judgments rendered in civil suits between private individuals, or in criminal matters, before the date mentioned [exchange of ratifications], and with respect to 487 wtllicl there is no recourse or right of review under the Spanish law, shall be deemed to 1, finial, and shall be executed il due fornm by competent authority in the territo'ry within which such judgment should l)e carried out. This treaty is supreme law in Cuba and binding upon the courts and all other governmental agencies subject to the control of the parties to the treaty. It seems manifest that to grant the prayer of the petition herein is to do violence to this stipulation of the treaty. I therefore report that the application should be denied. This application has been heretofore referred to Major-General Wood, military governor of Cuba, and by him referred to his secretary of justice, who made an exhaustive examination of the merits of the case and an elaborate report thereon, in which he finds against the applicant. Major-General Wood concurs in said report. For the reasons already set forth, I do not consider such examination essential. and therefore the merits of the case are not reported on. The views expressed in the foregoing report were approved by the Secretary of War and on June 5, 1900, the military governor of Cuba wats advised that 'the application was denied." REPORT ON THE APPLICATION TO THE SECRETARY OF WAR, MADE BY ANTONIO DIAZ HERRERA, AN INHABITANT OF CUBA, REQUESTING THE SECRETARY OF WAR TO ANNUL THE FINAL DECREE OF THE JUDGE OF SAN ANTONIO DE LOS BANOS MADE MAY 25, 1897. [Submitted June 1 1900.] SIR: I have the honor to acknowledge the receipt of the papers in the above-entitled matter with a request for a report thereon. In compliance with said request, I have the further honor to report as follows: It appears that a woman named Teofila Ullva Machin, a resident of Cuba, gave birth to four children. The mother was married to Augustin Ramirez. The records for the years, 1876, 1878, 1881, and 18s8 show that said children were baptized as the legitimate children of said Augustin Ramirez and said Teofila Ullva Machin, born in lawful wedlock. Said Ramirez (the husband) is now dead, but the date of his death is not set forth in the papers submitted. It further appears that some time prior to May 25, 1897 (date not appearing herein), the mother of said children instituted legal proceedings to have said children declared by the court to be the natural children of one Augustin Diaz Herrera, a brother of this applicant. On May 25, 1897, the judge of San Antonio de los Banios entered a decree in said proceedings. A copy of said decree has not been filed herein. 488 The application herein with reference to said decree recites: And which four minors by fintl sentence of the 25th of May, 1897, * * * are * * * declared to be the children of Teofila Ullva Machin and 't'unkno'n fathers. When this application was received by the Secretary it was forwarded to Major-General Wood, military governor, etc., ' for remlalk." lie referred it to the audiencia of Habana for report. From the report made by the audiencia the following is quoted: The declaration that the children of the Ullva were natural children of D)i(fz Herrera was made by final lecree of the judge of San Antonio de los Bafios on thle 25th of May, 1897. I accept the report of the audiencia as correctly stating the finding of fact contained in the decree of May 25, 1897. Both the application.and the report of the audiencia thereon decllare that said decree was final. In regard to the proceedings had by the judge of San Antonio de los Banios, the report of the audiencia of Habana recites: All the antecedents that prompted the above resolutions of the judge were recorded in the case, and in none of these van any misrepresentation of the rulings )e noticed. I take this to mean that the proceedings had were due and regular. No attack is made on the jurisdiction of the court which rendered the decree of lMay 25, 1897. I am of the opinion that the investigation of the Secretary should stop at this point. It is true that several actions have been instituted in the courts of Cuba seeking to set aside said decree. Some of said actions were started prior to the military occupation of Cuba by the United States and some of theml afterwards. All of them failed and the decree stands. Being a final de(cree in a (civil suit rendered prior to the exchange of ratifications of the late treaty with Spain, it is protected by the provisions of article 12 of said treaty, which are (as follows: Judgments rendered either in civil suits between private individuals, or in c'ri'ilinal matters, before the date mentioned, and with respect to which there is no recourse or right of review under the Spanish law, shall be deemed to be final, and shall l)e executed in due form by competent authority in the territory within which such judgments should be carried out. The legal proceedings instituted in regard to this matter at various times after the decree of May 25, 1897, was entered, were directed against that decree or the things rendered r(cs a]cjudicata ib that decree. If the application is considered as relating to the judicial proceedings had after the decree of May 25, 1897, or more especially those entertained by the court after American occupation, and whether or not such proceedings were original, or ancillary to the first action, the fact remains that said actions in court and this proceeding before the 489 secretary 1re each and all assaults upon a judgmenlt of a court conceded to be final at the date the treaty b)ecame operative as to the rights of individuals. The )purpose of this application will be better tunderstood when it is stated that Augustin I)iaz Herrera is now dead; Iand that under Spanish law natural children are entitled to plarticipate in the estate of their father when such relationship is judicially declared to exist. T'he applicant herein Js a brother and one of the heirs of the deceased. Having failed in various suits before the tribunals of Cuba to exclude these children fromn participating in his lrother's estate, he tiles this application. The casual reader of the application is liable to receive the impression that this proceeding is on behalf of the children and intended to relieve them from the odium of illegitimacy. Indeed, the opening paragraph denounces the decision of the court because it "declared that the four minor children of m ysaid brother * * * are natural children." The real purpose of the applicant is disclosed by the closing paragrap)h of the application, wherein he says: The false hereditary right of the minors being sanctioned by the judicial autliorities, * * * a fraud will be perpetrated with regard to the property of my brother to the prejudice of his legitimate heirs. It will be noticed that the applicant complains solely of the finding made by tile court on a question offact. The presumption is in favor of the finding of the court. Against this presunlption there is presented only the assertion of the defeated litigant tliat the finding is erroneous, which statement is not supported even by the oath of the applicant. However broad the authority of the Secretar my ay be in dealing with the courts of Cuba, the showing made herein is not sufficient to justify its exercise. I therefore report that the application should be denied. The Secretary of War approved the views expressed in the foregoing report, and the papers were returned indorsed as follows: WAR I)EPIARTMENT, )IVISIO)N OF INSUIAR AFFAIRS, June 5, 1900. Respectfully returnedl to the miiilitary governor,f (lCua with the information that the application is denied. By order of the Secretary of War: CLIAREN(CE R. EDWARDS, Acting Assistant Adjutant-General. 490 IN THE MATTER OF THE APPLICATION OF FRANK H. GRISWOLD, CHARLES BIGELOW, HERBERT S. GRISWOLD, AND JOSEPH J. McNALLY FOR ARTICLES OF INCORPORATION CREATING A CORPORATION UNDER AND BY VIRTUE OF THE LAWS OF PORTO RICO.a [.l)Minitted June 11, 1S99 (Case No. 414. D)ivision of Insular Affairs, 'War lDepartment.] SYNOPSIS. 1. At corporation is a creature of the law. In the absence of a law providing for its ilcorporation, a corporation can not be created. 2. The royal decree of Spain dated August 16, 1878, was the law under which corporations were created in Porto Rico at the time said island was ceded to the TUnited States. Said decree does not confer the right to incorporate upon the public to be exercised by such persons as desire to form a corporation. Under the Spanish monarchy the people possess only such rights as are conferred upon them by the Crown. The authority to grant the right to incorporate was retained by the Crown of Spain and exercised as a prerogative. By said decree such prerogative was delegated to the governors-general of the Spanish dependencies. 3. The Federal (overnment of the United States is not authorized by the Constitution to acquire or exercise the prerogatives of the Crown of Spain. A like incompetency exists as to the officers of the United States now in charge of the civil affairs in Porto Rico. 4. When the Spanish sovereign withdrew from Porto Rico and ceded the island to the United States, such of his sovereign rights as were not inimical to a republic passed to the sovereign people of the United States, where they will remain until that sovereign disposes of them by expressing its will in regard thereto by laws duly enacted. 5. When Spanish sovereignty was withdrawn from Porto Rico, tile Spanish governorgeneral, and all other officers of the Crown of Spain whose authority consisted in the exercise of royal prerogatives delegated to then, ceased to exercise such authority. Said delegated prerogatives did not pass to the officers of the United States now in charge of the civil affairs of said island. 6. Said royal decree of August 16, 1878, is now inoperative in Porto Rico. 7. There is no Federal statute of the United States authorizing the formation of a corporation with domicile in Porto Rico. Said proposed corporation is to have a capital stock of $200,000, divided into 2,000 shares of $100 each. Said corporation is to be known as the Porto Rico Brewing Company, and to be authorized, as stated in its proposed articles of incorporation, to engage in the business ofART. 6. * * * Manufacturing any and all kinds of malt and spirituous liquors fron grain and other products, and the utilizing of any and all material that may be purchased for the purpose of manufacturing said malt and spirituous liquors, the manufacture of ice, the installment of an electric plant and the right to manufacture and If such corporation can not be created under the laws of Porto Rico as now existing, then said applicants desire to become incorporated as a Porto Rico corporation under and by virtue of the Federal authority of the United States. 4,91 prolutce electric fluid, the estal)lishnlent and maintenance of coll-storage warerooms, the right to purchase and traffic il cold-storage products, the right to trade and traffic in all products such as it has a right t(o manufacture, and the right to engage in any lawful business that may be necessary or incidental to the exercise of the above-mentioned corporate privileges and pll urpose; ald when such incidental business is conducted by the corporation it will not be limited to the transacting of such business in a mere incidental manner, but may ol)tain the best results therefrom. ART. 7. That said body corporate shall have the right of perpetual succession, a common seal, the right to make by-laws and regulations not inconsistent with the laws of the land, the right to sue and be sue(d by their corporate name "Porto Rico Brewing Company," and the right to exercise its corporate privileges under protection of its charter, upon paying all general and univ-ersal taxes and without paying any special tax assessed against it or its property ly special law or ordinance. It will be noticed that these applicants seek to create a corporation and at the same time endow said corporation with special rights, privileges, and exemptions. Under the Spanish regime such benefits were sonmetimes bestowed upon both persons and corporations, but they were secured by separate and different procedures. Among other special privileges sought to be secured by these proposed articles of incorporation is one to be allowed to conduct the l-usiness of manufacturing and selling malt, spirituous, and vinous li(qu1ors without paying' any special tax assessed ag'ainst it or its )pr(o)erty." (See art. 7.) Eventually Porto Rico will tbe subject to internal-revenue laws; its lmunicipalities will possess the right in some degree to impose municipal license tax and other regulations on the sale of such liquors. They will also have authority to pave the streets, construct sanitary and storm-water sewers. and make other plublic improvements which confer special value and benefits on particular properties and justify the levy of special taxes on the property so benefited. Another privilege sought is that "its shareholders shall be liable only for the par value of their stock. (See art. 9.) Ordinarily stockholders in a corporation are liable for the unpaid portion of the par value of the stock they own, and are subject to an additional liability of 100 per cent on saikd stock. This Department, while temporarily engaged in administering the government of civil affairs in Porto Rico, ought not to embarrass the future permanent government of the island by granting concessions of this character, if it were admitted that the Department had the legal right so to do. The proposed corporation can not be created under and by virtue of the laws as they existed in the island of Porto Rico under Spanish dominion, for the reason that the office and the official upon whom the Spanish law conferred the authority to create such corporations have ceased to possess the right to exercise authority in Porto Rico. 492 The Regulatiols for the formation of colporations in the colonies," established by royal decree of the Cr(own of Spain, (dated August 16, 187S, provide as follows: CHAPTER I, lART. 2. These corporations shall lbe constitutel bvy means of pubilic instruments, whichl must be ap)proved, as well as their regulations, by the competent authority and in the manner hereafter stated. That manner is set forth in Chapter II of sai(l regulaltions, a copy of which is hereto attached. For corl)orations of the character desired by these applicants said law requies that the persons desiring to create the corporation first seculre the permlission of the governor-general to take the initial stepsthat is, the governor-general lmust authorize the plreliminary undertaking (chap. 2, art. 18), which undertaking consists of securing su)bscription for alt least one-half of the capital stock. (Chap. 2, art. 220.) This stock being subscribed, the sulscribers neet, and b}y resolution agree to the articles of incorporation and the lb-laws. Thereulpon the matter is again presented to the governor-general by submitting for his approval the original of the articles of incorporation atnd a copy of the by-laws and the resolution of the meeting at which they shall have beenl adopted, and also a s\worn statenment of the stock subscribed. (Chap. 2, art. 20.) The governor-general then investigates the entire lmatter andl approves or disapproves of the proposed incorporation. (Chap. 2, art. 21.) A corporation is the creature of a law. (IHead o. Providence Ins11u'Iane Company, 2 Cranch, U.S.. 127.) In attempting to create a corpo(ratioll p1)Lrsuant to the provisions of an existing law the procedureI required by said law must be strictly adhered to. By the law of the Spanish dependencies the tribunal vested with the power of granting the right to incorporate, as desired herein, was the governor-general. Under the, government now in charge of civil affairs in Porto Rico there is no such office or official. The officer in the United States Army who is now acting as governor of said island is an official of the United States and derives his authority froml tills Government and not from the Crown of Spain. In Munford c. Wardwell (6t Wall., 423, 435) the Unit1ed States Supreme Court say: MAexican rule came to an en(l in that departInent (California) on the 7th of July, 184(6, when the government of the samne passed into the control of our ulilitary authorities. lMunicipal authority also was exercised for a time by subordinate o(ficers appointed by our military commanders. Such commander was called military governor, and for a time he claimed to exercise the same civil power as that previously vested in the Mexican governor of the department. By virtue of that suppolsed authority Gen. S. N. Kearney, March 10, 1847, as military governor of the territory, granted to the town of San Francisco all the right, title, and interest of the 'llitedStates to the beach and water lots on the east front of the town included between certain dlescribed points, excepting su(chl lots as m!iight be selected for (overnment. 493 use. * * * But the power to grant lainds or confirnm titles was never vested in our military governors, and it follows as a necessary consequence that the grant, as originally madle, was void and of no effect. Nothing passed to the town by the grant. The power to grant tle right to incorporate or to create a corporation was never vested in our military governors. The powers of the present governor of Porto Rico are further limited 1)-b the fact that si(nce peace is declared he no longer exercises the rights of a }belligerent in actual war.. To definitely determine the exact law1 of many subjects in P'orto Rico under Spanish sovereignty will require extensive review and comparison of the royal decrees pronlulgated for said island. When this Department is called upon to enforce a Spanish law in Porto Rico, the first question is, Whtat are the provisions of said law' That leing determined, the next inquiry is. Are such provisions in harmony with the theory and character of the United States (overnment? If found to be inimical to our form of government, either in the spirit of the law or the instruments by which the law is carried into effect, this Department declines to enforce said law for the pur'pose of creating ri(hts not theretofore in existence. Whether the existing government in Porto Rico is considered a military or a civil government, the result is the same. Either is an instrument of the United States and lmust be utilized in accord with the home Governmlent or sovereignty upon which it depends. Under the Spanish monarchy the people exercise only such rights as the Government confers upon them. Under the Republic of tlie I'lited States the Government exercises only such rights as tlhe people confer upon it. When Porto Rico was ceded to the Ulited States our Federal Government did not succeed to the prerogatives over said island inherent in the Crown of Spain under thle monarchy. Our Federal Government has never been authorized to receive or inl anyI lway secure said prerogatives by transfer fromn a llonarch or otherwise, and mIuch less is it aulthorized to exercise sulch prerogatives. I'ollard's Lessee r. Hagan (How., U. S. (2). 212, 235): Since our Government can not exercise such prerogatives, it follows that our Government's officers can n1ot exercise them. Take the matter of creating a corporation in a Spanish dependency as an example. The power to confer the right is vested in the Crown of Spain. The exercise of that power is a prerogative of the Crown. The royal decree of August 1IF, 1878, simply delegates this exercise of power, or prerogative, to the governors-general of the several dependencies, and provides the manner of applying to said officers for the exercise of that prerogative by them. The grant of power is to the toffcer, not to the persons applying for the incorporation. The officer may grant the privilege or not, as he sees fit. The applicants do not possess the riqht to incor 494 porate, nor to take the preliminary steps thereto, until it is given to them by the governor-general. It can not be admitted that this prerogative passed to the officer of the United States who is now acting as the governor of said island. He is not the delegate of the Crown of Spain. This application does not call for the exercise of a right conferred upon the people, or such persons as desire to form a corporation. It calls for the exercise of a power heretofore possessed by the Crown of Spain and by the Crown delegated to a Crown officer. When the sovereignty of Spain withdrew from thel island, the royal decree of August 16, 1878, became null and void. Therefore there is no existing law in Porto Rico under which a corporation may be organized. Persons desiring to conduct })usiness in said island by means of a corporation must organize such corporation elsewhere. It appears from the documents filed herein that this application has been presented to the council of secretaries for the Department of Porto Rico, and that body has given its consent to the incorporation under the, articles of incorporation )proposed. The same want of authority in the council of secretaries and the absence of a law unIder which to proceed, prevent that body from giving legal effect to the act of incorporation, as prevent the military governor and this I)epartment. It therefore appears that applicants can not form a corporation of the kind and chlaracter set forth in their application under the existing laws of Porto Rico. The suggestion that said applicants desire to form a (orporation in Porto Rico under some general law of the United States need not bel discussed. There arIe no Federal laws of the United States under which such a corporation could be formed, were it admitted that said laws, if existing, would be in force in Porto Rico. As at present advised, this Department considers said royal decree of August 16, 1878, as being the law of incorporation in Porto Rico at the date of cession to the United States. If the provisions of that law have been modified so as to confer the power to grant incorporation upon some officer or body which did not become fitnctuts 42'(c!'o upon the withdrawal of Spanish sovereignty, a different question would be presented. Many persons seem to entertain the belief that special rights, privileges, and exemptions in the territory ceded by Spain to the United States may be conferred by this Department, or by the various officers now in charge of civil affairs in said territory, by the exercise of mere volition on the part of said officers or by arbitrary exercise of power. This misconception seems to be founded on the widespread, but not properly understood, idea that said territory is conquered territory and that the will of the conqueror is the law of the conquered. Without stopping to discuss the limititions and modifications of this 495 doctrine, imposed by modern custom, attention is directed to the fact that the conqueror in this instance is the sovereign people of the United States. That sovereign makes known its will by laws duly enacted l)y the legislative branch of its (overnment, therefore it is that our Government is one of laws. The military officers of our (Governmilent are authorized to act in military affairs in tinme of war upon thei'r own judgment and discretion, subject to the control of the superior authorities. Their sovereign deems that essential to the proper conduct of a war. But as regards Porto Rico, the war is over. Its purposes have been accomplished, the treaty duly exchanged, and peace declarled, the United States military officers in Porto Rico are no longer eng'aged in the conduct of a war. They are now engaged in the peaceful plrsuit of conducting the affairs of a civil govelrnment in time of l)ace. The rule for their actions must be found in the laws-Spanish laws, if they are in force and effect in the territory; tUnited States laws, if they are in force therein-and such rules, regulations, orders, and instructions as their home Government is authorized to make, either by virtue of its laws and principles of government or 1by the g(enerlal law of nations. By none of these is the authority given to the President. as Commander in Chief of the military forces of the United States, to create mnercanitile corporations in Porto Rico. The final action of the War Department o(n this application was as set forth in the following letter: V.R IDEI'PARTMENT, laT.s.ivf/tofi, Jnle 15, 1899. Sin: Referring to an application made February 1 1)y Messrs. Frank H. Griswold and others to incorporate the "Porto Rico Brewing Company," in the island of Porto Rico, I now have the honor to inform you that there exists in the War Department no authority for granting the formation of such a corporation with a domicile in Porto Rico. I beg to-inclose herewith a syllabus of the opinion of the law officer of the Division of Customs and Insular Affairs upon this subject. Very respectfully, G(. D. MEIKLE.JOHTN,.1ctin7g Secretar!! of IWar. Mr. JOSEPH J. 3ICNALLY. IN THE MATTER OF THE APPLICATION OF RAMON VALDEZ FOR A REVOCABLE LICENSE TO OCCUPY AND UTILIZE THE WATER POWER OF LA PLATA RIVER IN THE DISTRICT OF COMERIO, PORTO RICO. LSubmitted August 24,1899. Case No. 583, Division of Insular Affairs, War Department.] The applicant herein, Ramon Valdez, instituted proceedings, while Porto Rico was under Spanish dominion, to secure a permanent franchise for the use of the water power at Comerio Falls, in La Plata River, Porto Rico. Said proceedings were in pursuance of provisions of 496 Spanish law at that tilne in force in that locality, but had not prog~ressed sufficiently to confer a perfect title or completed franchise on Valdez at the time Porto Rico was ceded to the United States. Valdez applied to the governlent now in charge of the civil affairs of Porto Rico, for recognition and confirmation of his rights created by said proceedings. Tle application was forwarded to this I)epartment by Major-General Henry, indorsed: This applicant has complied with all the requirements of the law here. It is recornmended that his concession be granted in accordance with law, with strict conditions that he shall begin and complete the work without delay. It appears by the reports of Maj. A. C. Sharpe, acting judgeadvocate, F. L. Hills, director of public works, and F. del Valle Atites, secretary of the interior for Porto Rico, that all the requirements of the Spanish law have been complied with in said matter, and that no legal rights of private persons would be violated if the exercise of the concession were permitted. It also appears that Valdez owned or had leased the land constituting the banks on either side of the river at this point. The view taken by the Division of Customs and Insular Affairs of this Department was that inasmuch as the beds of streanls in Spanish territory belonged to the Crown, and the Crown or public property in Porto Rico had been transferred to the United States, it followed that if the desired portion of the Plata River bed belonged to the public domain of Spain at the time of the transfer by treaty, the concession could not be granted by this Department, but this Division considered that the filing of said application, pursuant to existing law, segregated the point in the river bed covered by the application and created a property right thereto, in Valdez, which the United States is bound to respect. (Bryan v. Kennett, 113 U. S., 179, 192.) Regarding the title secured by the United States to public lands in California by the cession from Mexico, the United States Supreme Court say: It took the lands subject to all the equitable rights of private property therein whlich existed at the time of the transfer. Claims, whether grounded upon an inchoate or a perfected title, were to be ascertained and adequately plrotected. (Newhall r. Sanger, 92 U. S., 764.) Conceiving the rule to be the same in the instance of Porto Rico, the Insular Division considered it proper to pursue a course in harmonv with the rule laid down by Halleck's International Law: And as the law of nations and the usage of the civilized world impose upon the new sovereignty the duty to maintain and protect the property of tie conqueredl inhabitants, it is bound to take the necessary steps to clothe equities with a legal title, so as to bring them within the scope of legal remedies under its own laws. * * * A delay in applying such remedies is often equivalent to a denial of justice or a confiscation of private property, and is therefore a breach of public law and a violation of national faith. (3( ed., chap. 34, sec. 26.) 497 This Department considered that Valdez had acted in good faith in this nIl.tter, and had properly pl)ocee(led to acquire this franchise pursuant to the provisions of the Spanish lahw, and that such proceedings w-ere of force and effect up to the tille the sovereignty of Spain and the publlic property in Porto Rico were ceded to the United States. (Halleck's Inlt. Law, 3d ed., chap. 33, sees. 23, 24, land 25.) The Inlited States Supreme (Court say: In liarinoiiy with the rules oil international law, as well as withl the ternis of the treaties,)f cession, the change of sovereignty should work no change in respect to riglts andl titles; that which was g(ool before should be good after; that which the la-x would enforce l)efore shouldl ble enforciblle after tile cession. (Ely's Adininistrator. I'nited States, 171 1'. S., 220, 223. ) The expression " rights and titles" was understood t(o minean eqlt!itable rights as wvell as legal titles. The applicattion was referred to the honolrable Attorney-(General, w-ho decided adversely- lolding thatIf ill the granting of a right or pIrivilege thle sovereign ]has retained an iota of autllhority which Illay affect its untralnineled( exercise and enjoylnent, t-e right is not of the nature of an absolute ones, but wholly of all inchloate ani( imperfect lquality. As to incho:late, imperfect, incomplllete, and eqluital)le rights the succeed(ing sovereign is tlle abs:lute dictator. The! (can not lbe exercise(l against his sovereignty, but only b}v is g race, and its affirmative exercise is,nlccetssarv to tile validity of the colncession. (Sctc letter of July 27, 1899, 22 01). 549. ) Ac(ceplting the Attorney-(General's determiniation as concllusive, it appealrs that the United States is the proprietor of the bed of the Plata River -at this point, free anld clelar of inctullnbrance. as to Valdez. since the Lights he asserts can only be exercised \by the grace of the new sovereign. Thereupon Valdez applies to this Department for a revocable license perimitting hini to utilize sai(l water for the purpose of operating a plant for producing electrical power. The transfer of title from $Spainl to the United States is complete. Such title as Spain possessed and could convey to a republic is now vested in the United States. The property of the United States in Porto Rico is in the custody and charge of the War Department. In letter to the Secretary of War dated JTuly 26, 1899, i/n re application of Frederick VW. Weeks for permission to construct and maintain a wharf on the submerged soil and in the harbor waters at Ponce, Porto Rico, the Attorney-General determined that the Secretaryv of 'War has authority to grant a revocable license to make temporary use of portions of the public domain in Porto Rico, limiting the time the license continues in effect to "the period of military occupation" of Porto Rico. The Attorney-General advises (as a matter of policy) "that no license * * * should be granted except to some person ow-ning the abutting lands," etc. (28 Op. 545-546.) 1394-03 32 498 Valdez owns the land constituting one bank of the river at the point where said water power is located, and has secured the assent of the proprietor of the other bank to his use of said water power in the way contemplated in this application and the construction within the banks of said river of such structures as may be necessary for such use. The difference between the license desired herein and that determined to be permissible in the Weeks case is that the Weeks application was for rights in and to soil beneath navigable waters, while this application seeks to secure rights in and to soil beneath waters not navigable. The course or policy pursued by Congress as to soil submerged by non-navigable waters in territory acquired from foreign nations, differs from that adopted as to soil submerged by navigable waters. For many years it was maintained that the United States held the land submerged by navigable waters in trust for the future States which should be erected in the territory, and that Congress could not dispose of said land. The final word of the Supreme Court in that matter is found in Shively v. Bowlby (152 U. S., 1, 58), wherein the court, after an exhaustive review of the questions involved, adjudged as follows: The United States, while they hold the country as a territory, having all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high-water mark or tide waters, but they have never done so by general laws, and, unless in some case of international duty or public exigency, have acted upon the policy, as most in accordance with the object for which the Territories were acquired, of leaving the administration and disposition of the sovereign rights in navigable waters and in the soil under thetll to the control of the States, respectively, when organized and adllnitted into the Union. The rule or policy adopted as to land submerged by non-navigable waters is different. By general law Congress has provided: All navigable rivers within the territory occupied by the public lands shall remain and be deemed public highways, and in all cases where the opposite banks of any stream not navigable belong to different persons the stream and the bed thereof shall become common to both. (Sec. 2476, U. S. Rev. Stats.) As to the streams in the territory acquired by the Louisiana purchase Congress provided that: All the navigable rivers and waters in the former Territories of Orleans and Louisiana shall be and forever remain public highways. (See sec. 5251, U. S. Rev. Stats. ) It will be noticed that Congress left the rights of proprietors adjacent to nonnavigable streams to be determined according to the rule of the common law. The Supreme Court of the United States say: By the law of England, Scotland, and Ireland the owners of the banks priuml t;fie own the beds of all fresh-water rivers above the ebb and flow of the tide, even if actually navigable, to the thread of the stream. (Shively r. Bowlby, 152 U. S., 1, 31.) 499 This rule of the common law has been modified as to navigable streams by legislative enactments in several States of the Union, but as to lon- lavigable streams the uniform! rule throughout the States is: Fresh-water streams which are not a commllon peassage are private property, and the title to the b)ed of the river ad filun, (,I:ta' is in the riparian proprietors. * * * If the banlks on both sides of the river belong to the same person, lie owns the entire river bed according to the extent of his lands in length. (Gould on Waters, 2d1 el., clap). 3, sec. 46.) It seems clear that Congress proceed upon the hypothesis that the common law is one of the institutions of this country, and that upon the acquisition of territory by the United States from a foreign nation the rule of the common law as to submerged soil attaches thereto and controls the rights of the new sovereign and the adjacent private owner. As the United States Supreme Court say: Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own government and not according to those of the government ceding it. (Pallard's Lessee v. Hagan, 3 How., 212, 215; Vat., Laws of Nations, b. 1, c. 19, s. 210, 244, 250, and b1. 2, c. 7, s. 80.) Under this view of the matter, the privilege which Valdez seeks to exercise would be appurtenant to the rights he now possesses. In support of the authority of the Secretary of War to grant the license requested, in addition to the opinion of the Attornev-G-enerI on the Weeks application, attention is directed to the provisions of the act approved Jully 28, 1892, as follows: That authority lbe, and is hereby, given to the Secretary of War, when in his discretion it will be for the public good, to lease, for a period not exceeding five years and revocable at any time, such property of the United States under his control as may not for the time be required for public use and for the leasing of which there is no authority under existing laws, etc. (U. S. Stat. L., vol. 27, chap. 316, p. 321.) If the bed of the Plata River is now the property of the United States, it is subject to the authority conferred by the foregoing law. A question arises as to the advisability of issuing this license independent of that of authority to do so. In response to inquiry, General Davis, governor of the island, cabled as follows: The right to utilize water power at Comerio is now being litigated in local supreme court. I recommend adverse action by Department until question of title is settled. Temporary license would be useless, for to utilize the power would cost a large sum in (laml head works and turbines w hich no temporary use would justify. I will soon forward a large number of papers of rival claimant. If the litigation referred to relates to rights derived from or dependent upon the concession or proceeding relating thereto, such litigation is rendered unavailing (in this Department) by the determination of the Attorney-General that said proceedings did not create substantial rights. 500. If said litigation relates to the requirements of the Spanish law of concessions, its pendency is inconsequential, as the change of sovereignty r'evoked all laws authorizing the alienation of the public domlain. No proceedings affecting the rights of the new sovereign over public propertv can be taken except in )pursuance of his authority on the subject. (Moore '. Steinbach, 127T. S.. 70, 81; United States r,. Vallejo, 1 Black, 541; Ely's Admr. r'. United St:ates, 171 U. S., 220, 230.) If the litigation relates to the ownership of the land adjacent to or constituting the banks of said river at said point, and the rights appurtenant to said ownership, the granting of the revocable license asked for will not affect the legal rights of the parties, an(d by appropriate provisions in the license the rights of all may be protected. It is probably true that securing the desired license will afford Valdez a slubstantial advantage in the final determination of the right to use this water power.. In the United States priority of possession, or tle first use of water for mining, agricultural, manufacturing, or othel lpurposes, creates rights of sutbstantial character recognized by the courts and Congress. (Broder r. Water Co., 101 U. S., 2763: Sparrow v. Strong. 3' Wall., 97; Basey r,. Gallagher, 20 Wall., 670: Atchison R. Peterson, 20 Wall.. 507. See also sec. 2339, U. S. Rev. Stats., and the act of February 27, 1865, 13 Stat. L., 441.) Thle doctrine so recognized arises from the established policy of this nation to encourage and promote the development of the natural resources and advantages of this country, and is equally applicablle to conditions in Porto Rico. Conceding that al.advantage will be obtained by securing the rigllts of prior occupancy, no reason appears to exist why such advantage should be denied to this applicant. He shows to this Department that he has been a pioneer in developing Porto Rico, and (desires to immediately utilize this water power to extend and promote the electric railway and electric-lighting plant owned and operated by him for several vears. He is shown to be a business man of means and standing. wlo desires to invest his capital in the development of the community in which he has for ye'arls resided. A revocable license was issued, pursuant to the foregoing recommendation, but was subsequently revoked, and the matter was thereafter disposed of by the civil government of Porto Rico created by Congressional enactment. 5()1 MEMORANDUM RESPECTING THE EXERCISE OF THE POWER TO PARDON UNDER THE MILITARY GOVERNMENT MAINTAINED IN NEW MEXICO. A,LSO THE ORDERS OF THE MILITARY GOVERNMENT OF CUBA RELATING TO THE EXERCISE OF THE POWER TO PARDON UNDER THAT GOVERNMENT. [Submitted.J lly- 2;. 1901.] The conquest of New Alexico by the military forces of the United States was accomplished }by the campaign of 1lS46. In compllialnce with instructions given )by the Presidetit, the officer in colnllan(l, G(elleral Kearny, orgalized a civil governmel'l t for the occupied territory and filled the executive and judicial offices by appOiltmeint. In December,, 1846, the inative ilnhabitallts orgalizel a conspiiracy to overthrow the United States authority in New Iexico. On the nigllt of,January 15, 18, S the inlsurgents begani hostilities and succ'tee(led ill killing the goveriior and a Inumber of others, officials and citizens of the U'iited States. The insurrection blecame general aLnd the declared purpose was to kill all the Amerlicans anld those Mexicans who had accepted office undeir the Anlielrical Govelnmentlt. The ilsurrection was suppressed )by the llilitary forces of the United States and a l1111l1 -ber of the ilsurgenlts cal)tulred, and by the latter part of 1tS7 collparative safety was secured and maintained by stationing troops at \valrious points. Of the insurgent prisolers, somle were tried b1 court-martial, sentenced to deatlh, and executed. The others w-ere turned over to the civil authorities of the militairy goveriinmelt forl trial ill the civil courts. A graind jury indicted four of them fol the ofenise of tlreaon against the Unlited States. One Nwas tried b}y a, julry ald convicted. The prisoner challenged the jurisdiction of the civil court and assailed the indic(tment on the ground that he was not a citizen of the L[nited States Inor bound to yield allegianlce to that Goverlmilct. Strong pressure was brought to bear in his behalf, and the district attorney, AMr. Blair, referred the matter to Washingtonl for instruction. Ile addressed his communication to iton. John Y. MIason, then AttorneyGeneral of the United States. Said letter wa*s as follows: SAXNTA FE, April, 1, 147. SIR: You will dloubtless lhave received, before this reaclles you, the particulars of the late insurrection in the northern district of tills Territorv, through tlle public prints. Of tle prisoners taken in the suppression of that rebellion one of the leaders was executed under seltelnce of a court-mlartial. Thle remlainder were turned over for trial to the civil autllorities on thle chlarge of treasonl against the l nited( States. At a termi of the United States district court for this Terlitory, hel(i at this capital in March last, four conspicuous p)er0olls in tile late rebellion Nwere indicted( for treason by the grand jury, three put upon their trial, one of whonll as found guilty alnd 502 sentenced by the court, one discharged under a nolle )prOoseqi, al(nd two obtained continuance to the adjourned term of the court in May next. SoIe twenty-five prisoners were discharged, the grand jury not finding sufficient evidence to indict them for treason. About fifty prisoners are confined at Taos, in the northern district, awaiting trial at the term of the court commencing on the 5th instant, at which time both the circuit court for that county and the United States district court will be in session. A number of the prisoners can be identified as active participants in the massacre of the late Governor Bent and others. These it is the intention to prosecute before the circuit court, but many others, who were active in the planning and exciting the late insurrection, I feel it my duty to prosecute for treason against the United States. I have taken the liberty to lay these particulars before you in order that I may understandingly ask your counsel and advice, which I have had a great desire to obtain before entering upon these prosecutions, but the want of opportunity to coimmunicate with you did not permit it. You are doubtless fully aware of the manner and form in which Brigadier-General Kearny declared New Mexico a Territory of the United States and its inhabitants citizens subject to her laws and liable to penalty for their infraction in like nanner as citizens of any other Territory of the United States. By the authority in hin vested he established a civil government, a superior court, with jurisdiction as a United States district court. In this last-named court I, by appointment, act as United States district attorney, and have felt it my duty to prosecute all acts of treason committed by the inhabitants of this Territory, holding them responsible for all their acts a. citizens of the United States. In nearly all the cases tried the counsel for the defense have entered pleas to the jurisdiction of the court, which the court overruled, and in the case of Trujillo, who was convicted, the defense plead the jurisdiction of the court before the jury, declaring it to be unconstitutional to try any native inhabitant of New Mexico for the crime of treason against the Government of the United States until by actual treaty with Mexico he became a citizen. The court ruled out any consideration of this point by the jury, leaving it only the evidence and the facts upon which to make its verdict. Considering how it was constituted, the court was bound by its oath to view all the inhabitants of New Mexico as citizens of the United States and to execute the laws in regard to them as such, leaving the responsibility of the question of its constitutionality to fall back upon the power which constituted it. I am anxious to receive your counsel and advice at the earliest possible moment in regard to all the matters above referred to. Mails for this place will no doubt leave Fort Leavenworth regularly hereafter, and I trust you will oblige me by replying to this by the first opportunity. Very respectfully, your obedient servant, FRANK P. BLAIR. lHon. JOHN Y. MAIsoN, Attorney-General of the United States. The Attorney-General referred the matter to the War Department. Hon. W. L. Marcy was then Secretary of War, and lie addressed his communications relating to the matter to Colonel Sterling Price, in command of the United States forces in New Mexico. From these communications the following passages are quoted: WVAR DEPARTMENT, Juoe 11, 1847. SIR: * * * * * * * I am not aware that the President has yet received the petition for the pardon of Antonio Maria Trujillo, but I have conversed with him and am now enabled to present his views on that subject. 503 The temporary civil government in New Mexico results from the conquest of the country. It does not derive its existence directly from the laws of Congress or the Constitution of the United States, and the President can not, in any other character than that of Commander in Chief, exercise any control over it. It was first established in New Mexico by the officer at the head of the military force sent to conquer that country, under general instructions contained in the communication from this Department of the 3d of June, 1846. Beyond such general instructions the President has declined to interfere with the management of the civil affairs of this Territory. The powers and authority possessed by General Kearny when in New Mexico were devolved on you as the senior military officer on his departure from that country. They are ample in relation to all matters presented to the consideration of the President in the communication of the acting governor, Vigil, dated 23d March last, and to you, as the senior military officer, or to whosoever is such officer, he will leave such matters without positive or special direction. Your better knowledge of all the facts and circumstances will doubtless enable you to take a wise and prudent course in regard to them. The insurrection in that department called for energy of action and severe treatment of the guilty. It was but justice that the offenders should be punished; the safety of our troops and the security of our possessions required it. Beyond what was necessary to these ends, it is presumed you have not gone; and the President sincerely hopes that the life of Antonio Maria Trujillo may be spared, without disregarding them. With this suggestion he leaves the case of Trujillo to your disposal, as he does all others yet under consideration. * * * * * *- * Very respectfully, your obedient servant, W. L. MARCY, Secretary of War. Col. STERLING PRICE, Or Officer Commanding United States Forces at Santa Fe, N. JMex. WAR DEPARTMENT, lWashington, June 26, 1847. SIR: * * * * * * The foundation of the civil government in New Mexico is not derived directly from the laws and Constitution of the United States, but rests upon the rights acquired by conquest. I call your particular attention to the fourth paragraph of my letter of the 11th of June, as containing the principles on which the temporary government at New Mexico does or should rest. The territory conquered by our arms does not become, by the mere act of conquest, a permanent part of the United States; and the inhabitants of such territory are not, to the full extent of the term, citizens of the United States. It is beyond dispute that, on the establishment of a temporary civil government in a conquered country, the inhabitants owe obedience to it, and are bound by the laws which mnay be adopted. They may be tried and punished for offenses. Those in New Mexico, who, in the late insurrection, were guilty of murder, or instigated others to that crime, were liable to be punished for these acts, either by the civil or military authority; but it is not the proper use of legal terms to say that their offense was treason committed against the United States; for to the Governmnent of the United States, as the Government under our Constitution, it would not be correct to say that they owed allegiance. It appears by the letter of Mr. Blair, to which I have referred, that those engaged in the insurrection have been proceeded against as traitors against the United States. In this respect I think there was error, so far as relates to the designation of the offense. Their offense was against the temporary civil government of New Mexico and the laws provided for it, which that government had the right and, indeed, was bound to see executed. 504 On two former occasions I have addressed you in regard to Trujillo, who has been convicted of participating in the insurrection, and the execution of his sentence suspended, and made known the decided wishes of the President that his punishmlent should be remitted. Firmness may, under some circumstances, be requiredl as an element of security to the citizens of the United States and other persons in countries conquered lby our arms. When such is the case it should be unshrinkingly exercised; but when a merciful course can be safely indulged it is strongly commllended as promising in tile end the best results. Such a course is prompted by the l)etter feelings of our nature, and, on the ordinary principles of human action, can not fail to promote quiet, security, and conciliation. I would therefore suggest tlat this course be adopted in all the other cases not finally disposed of, so far as considerations of safety will allow. * - * *- * ** Very respectfully, your obedient servant, V. L. MAIRCY, Secretary of WIar. Col. STERLING PRI(E, Commandcing ULiited States Forces, Sinlta Fe, N. Me.c. For the reasons stated in the foregoing correspondence the President declined to exercise the power to pardon vested in hini as chief civil magistrate of the United States, but as Commander in Chief of the Army authorized the military governor to use his discretion in the matter, and the priisoner was pardoned by the governor. The events resulting froIn this insurrection did not escape the attention of Congress. That body, on July 10, 1848, passed a resolution calling upon the President for information in regard to the existence of civil governments in New Mexico and California; their form and character; by whom instituted and by what authority, and how they were maintained and supported; also whether any persons had been tried and condemned for " treason against the United States" in New Mexico. President Polk replied to said resolution by muessage (dated July 17), received July 24, 1848, in which he discusses the character of military government, taking the position that such a government inay exercise the " fullest rights of sovereignty." With said message he transnlitted the correspondence above referred to and also a letter received by him from the Secretary of War. In this message President Polk said: The temporary governments authorized were instituted by virtue of the rights of war. The power to declare war against a foreign country, and to prosecute it ac'ording to the general laws of war as sanctione(l by civilized nations, it will not be questioned, exists under our Constitution. When Congress has declared that war exists with a foreign nation, "the general laws of war apply to our situation," all it becomes the duty of the President, as the Constitutional "Commander in Chief of the Army and Navy of the United States," to prosecute it. In prosecuting a foreign war thus duly declared by Congress we have the right, by "conquest and military occupation,"' to acquire possession of the territories of the enemy and, (luring the war, to "exercise the fullest rights of sovereignty over it." The sovereignty of the enemy is in such case ' suspended," and his laws can "no longer be rightfully enforced " over the " con(luered( territory " or be obligatory upon. 505 the inhabitants whilo remlain andt sublinit to the conqueror. By the surredler thle inhabitants pass under a "''telnporary allegiance" to the conqueror an(l are '" bllnd by such laws," and such only, as "he may choose to recognize andl impose.' Frlm the nature of the case, no other laws could be obligatory up)on themri; for where tlhere is no protection, or allegiance, or sovereignty, there clan be nlo claimn to obedience. " These are well-established principles of the laws of war as recognize(l anll practice(l by civilized nations, and they have been sanctioned by the highest judliciial tril)unal of our own country." The letter from the Secretary of Wiualr, which accomlllpaie the President's message, was as follows: W\AR I)EPAR.T.MIE1STr, lTT'(sliigtooi, J4l1I 19J, 184,i'. SIR: In conmpliance with your direction to )be furnished with such infornmltion, as may be in this Department, to enable you to answer the resolutions of tlle I louse of Representatives of the 10th instant, in relation to tile civil governments in New Mexico an(i California, to the appointment of civil officers therein and the 1ayment of their salaries, to trials for treason against tile KInited States in \New- Mexico, etc., I have the honor to state that the (locuments fronm this D)epartmnent w\lhich1 a(cco((mlpanied your message to the IHouse of Representatives of the 22(1 of Decembler, 1846, in reply to a request by that body for information " in relatiol to tile estal)lislmlhment or organization of civil government in anlly portion of the Territory of MIexic'o whlich. has been or nlight be taken possession of by the Army or Navy of the Ulnllitedl States,' contain all the ordlers antl dlirections whichll ]ad been issue(l 1,N the War Dl)eplartmlent previous to that time and all tlle information then knownl here in regar(l to tile formn anal character of the governments (estalblished in Netw \ exico and Californlia, thle authority b)y which they were establishe(l, and thle appoilltlment (f civil (,llicers therein. The documnlents which accompany this communnication contain all thle inlforllntion on the same subjects subsequeutly receive(l at this I)epartllent, as well as all tile orders and instructions issued from it since the (late of that lnessage. The governments in New Mexico and California resultedl fro)n the conquest and military occupation of these territories, andll were established( by the military officer in chief conmimand.. They have been continuet by the slame authority, and \whatever c(hanges may have occurred in the office of governor have been generally mlade I)y the commandiing mnilitary officer without spec(ial instructions froni this Department. In respect to California instructions were given to (General Kearny to liroceedl from New AMexico to that territory, and, on his arrival, to hold it and( exercise, so far as was necessary civil functions therein. Col. I. M..Mason, of thle First Regimlent of Dragoons, was afterwards sent to take chief military (olnmllandl of that territory whenever General Kearny, who had leave to return to the lUnited States, should withdraw from it; and as an incid(ent of such commland to exercise the duties of tein)orary civil governor, or make proper arranglements for a civil government therein. It appears by the accompanying papers that Charles Bent, whllo had i)een appointed civil governor of New.Mexico by iGeneral Kearny, was murdered in an insurrectionl which took )lace in January, 1847, and( the office of governor by that event was (levolved on Doniciano Vigil, who was secretary of state uin(ler Governor Bent. The appointment not only of governor but of all tile other civil functionaries was left to the military authority, which held the country as a conquest fronm the enemy. There is no other information in this Department in relation to the changes in the civil othcers of either New Mexico or California than such as is contained in the documents which accolllpany this commnunication. It is presumed that the expenses of the civil government in botll of these territories have been defrayed by revenues raised within the same. There is nothing in the 506 documents in the Department, nor have I information from any other source, to show that the salaries of the officers of the civil government in either have been paid from the Treasury of the United States, or that any money has been drawn therefrom to defray any part of the expenses of the civil government established in them. It appears by the accompanying documents that early in January, 1847, there was an insurrection in New Mexico, confined to that part of it which lies east of the Rio Grande, and many murders, mostly of American citizens, were perpetrated. By the energetic conduct of our military force it was suppressed; not, however, until after considerable loss of life on both sides. Some of the instigators of it, taken in arms, were executed by the military authority, and others deeply implicated in the crimes committed were turned over for trial to a civil tribunal called a "district court of the United States." They were, in form, charged with treason against the United States, condemned, and some of them executed. In April, 1847, the person acting as district attorney on their trial addressed a letter to the Attorney-General of the United States (a copy of which is among the documents appended hereto), but it was not received until the latter part of May or the first of June of that year. By this letter it appears that objections were made at the trials by the accused to the jurisdiction of the court. It was urged by them that being citizens of Mexico before the conquest of the territory they did not become thereby citizens of, and, consequently, could not be guilty of the crime of treason against the United States. These objections were overruled, the trials proceeded and resulted in the conviction and execution of several of the accused. This letter was referred to this Department by the Attorney-General with a suggestion that he would give an official opinion upon the questions presented, if, as is the legal course, it should be requested; but the error in the designation of the offense was too clear to admit of doubt, and it is only in cases of doubt that resort can be had to the Attorney-General for his opinion. On the 26th of June, 1847, I wrote to the commanding officer of Santa Fe a letter (a copy of which accompanies this communication) in which the incorrect description of the crime in the proceedings of the court is pointed out. It is therein stated that " the territory conquered by our arms does not become, by the mere act of conquest, a permanent part of the United States, anti the inhabitants of such territory are not, to the full extent of the term, citizens of the United States. It is beyond dispute that, on the establishment of a temporary civil government in a conquered country, the inhabitants owe obedience to it, and are bound by the laws which may be adopted; they may be tried and punished for offenses. Those in New Mexico, who in the late insurrection were guilty of murder, or instigated others to that crime, were liable to be punished for these acts either by the civil or military authority; but it is not the proper use of legal terms to say that their offense was treason committed against the United States. For to the Government of the United States, as the Government under our Constitution, it would not be correct to say that they owed allegiance. It appears by the letter of Mr. Blair, to which I have referred, that those engaged in the insurrection have been proceeded against as traitors to the United States. In this respect I think there was error, so far as relates to the designation of the offense. Their offense was against the temporary civil government of New Mexico and the laws providled for it, which that government had the right and, indeed, was bound to see executed." No copy of record of the proceedings of the court, on these trials for treason, has been received at this Department. Very respectfully, your obedient servant, iW. L. MIAR.CYv, Sn'tef'!/ of lVar. To the PRESIDENT. (House Ex. Doc. No. 70, first session, Thirtieth Congress, War Dept. Cong. Doc. 521.) 507 The situation in Newv Mexico at that time was as follows: The government of New Mexico asserted sovereignty over said territory. The government of Texas also asserted sovereignty thereover. A portion of the inhabitants acknowledged allegiance to Mexico and a portion to Texas. A portion of the inhabitants acknowledged the authority of the United States resulting from the military occupation, but by far the greater portion of the inhal)itants refused such acknowledgmlent and were attempting to expel the forces of the United States. Attention is directed to the fact that at the tiime these trials occurred the treaty of peace with Mexico had not been signed, but the United States has always maintained that it acquired title to Mexico and California by conquest, and not from the treaty. The treaty does not pretend to cede territory. It is a treaty of peace in which Mexico acknowledged the rights secured by the United States by conquest. The title of the United States commences with the completion of the conquest and dates from the period when the territory was occupied by the United States military forces. The military government of Cuba has issued certain orders in respect of pardons by that government. Copies of such of said orders as have come to my notice are transmitted herewith, being Headquarters I)ivision of Cuba, series 1900, Nos. 22, 26, 30, 37, 38, 43, 46, 48, 69, 104, 105, 111, 137, 139, 143, 156, 175, 197 206, 240, 395,462,489, 498, 518. (And also of the series of 1901, Nos. 1. 5, 12, 16, 113.) In a communication to the War I)epartment, dated May 22, 19(1, Maj. Gen. Leonard Wood, military governor of Cuba, having reference to an exercise, by the courts of Cuba. of the power to remit unexpired sentences imposed in criminal cases, says: Under the Spanish law the sentencing court retains jurisdiction over the prisoner sentenced, as to questions of pardon, release, etc., irrespective of Ilace of impllrisoninent, whether within or witltout the island of Cuba. IN THE MATTER OF THE COMMUTATION BY THE COURTS OF CUBA OF THE SENTENCES HERETOFORE IMPOSED BY SAID COURTS ON PERSONS CONVICTED OF CRIMINAL OFFENSES COMMITTED IN CUBA WHEN THE CONVICTED PERSONS ARE SERVING OUT SAID SENTENCES IN PRISONS SITUATED IN TERRITORY NOW SUBJECT TO THE SOVEREIGNTY OF SPAIN. -[Submitted June 5, 1901. Case No. 277, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge and comply with your request for a report on a matter arising as follows: Prior to January 1, 1899, certain residents of Cuba were convicted of criminal offenses and sentenced to imprisonment. These sentences were executed by transporting the persons to Spain and incarcerating 508 them in penal institutions there situate. Upon the sovereignty of Spain being withdrawn from Cluba, such of these convicts as were serving unexpired sentences remained in the penitentiary in Spain to which they had been committed. 'In a communication to the War Department, ldated May 22, 1!01. Major-General Wood. military governor of Cuba, says (1st End. I)oc. No. 40, Case 277): Under the Spanish law the sentencing court retained jurisdiction over the prisoncr sentenced as to questions of pardon, release, etc., irrespective of place of imprisonment, whether within or without the island of Cuba. The military government of Cuba has issued the following orders: No. 26.] I E.\AUA.R'rERS, DIVISION OF CUBA, Itaba(nl, Janrtarl 18, 1900. The military governor of Cuba, uponl the recommendation of the secretary of justice, directs the publication of the following order: 1. Hereafter, whatever time prisoners vlho mlay be condemned to any of the co0rrectional or light punishments specified in article 24 of the Penal Code may have been held inl provisional imprisonment shall be counted as a part of tlieir term of service and (deducted therefrom. II. A like deduction, but limited to. one-half tile period of provisional iml)risonlment, shall be mnade in favor of prisolers sentenced to any of the punishmenllts known as "exemplary punishment" (pena afictiva) in article 24 of the Penal CoIe. [SEAL.] ADNA R. CHAFFEE, hB'iadicer- General, Chief ' 1f'!t!'. No. 137.] lIHEADQA..TS, I)VISION )O (CB.\, Ilabala,.April 5, /100. The military governor of Cuba, upon tile recommendation of the secretary of jistice, directs the publication of the following order: Order No. 26, Headquarters Division of Cuba, dated January 18, 1900, being in lie nature of a provision favorable to the prisoner, is, in accordance with the provisions of article 21 of the Penal Code, declared to have retroactive effect. AINA R. CHAFFEE, I',i;tadter-tneratl, U.S.. ' mlunteers, Chief of q'S't(l. In administering said orders the courts of Cuba have remitted a portion of the sentences imposed by Cuban courts, during the titme Cuba was under the sovereignty of Spain, upon Ramon Ulque AMesa, Francisco Risco Orihuela. Florentino de la Paz, Pascual Camllpos, Santiago Ibanez, Candido Figueroa y Acosta, Tomnls Sanchez or Gonzales, and Isidoro Caballero Lozano, each of whom is now confined in a penal institution in Spain. (I)oc. 40, Case No. 277.) The military governor of Cuba requests the War Department to call upon the State Department to enter upon diplomatic negotiations with the Government of Spain to the end that the Government of Spain recognize said nodification of s'lid sentences so made by the courts of Cuba. (1 End. Doc. 40, Case No. 277.) 509 ( Th'le qutestion for the Secretary of Wfar to determine appear1s- to h,.e: Is the. Sec-retarv of War justified in re(questhing the, State Departmenit to) inaugurate negotations with Spaini to accomplish this put-pose? The treaty of peace between Splain and the Uniitedl States providles as follows: A inr XII. Judicial proceedlings pendiin- at the timie of the exchanige of ratitications of this treaty in the territories over whic'h 'Spaini relinquishes or cedes her sovereigntv shall be (letermined accorli ngr to the following rules: 1. Judgments rendleredI either in civil suits between private individuals, or in ('rilninal matters, before the (late mentioned, and with resp~ect, to which there is no recourse or right of review, unier the Spanish law, shall. le deemed1 to b~e -f1nal, and Aihall he executed in due formn by completenit authority in the territory -withini which such judgments should be carriedl out. It will be noticed that judgments in criminal matters are to be (coflsierd ial in those eases onily wdAri.spc to w/i h/oe t/ei;'c sn Vf eYrs0x OP rlfqkt (Jr"eevh'?I v'mld' tiw bmla." If the military gover-nor is correct, in savinig that tinder Spanish law the court imposi no' sentence retainis jurisdiction to p)ardon or release the c-onvicted person and said jurisdiction extendled to commutation of senltenlces, it follows that the convicted persoiis had a (continuing riight o)f recourse to the c-ourt in wvhic-h they wvere convicted and sentenced, and the (court had and retained the rigttorve thmaer t hee forec the judgments are not to be (considered '' /7nal! as thwat. word is usled in the treaty. I understand the purpose. of p)arag)raph. t of Article XII. of the treaty to be to pr-eserve the jurisdictioni of the courts of Cuba in matters pending before t~hemu. if so, Spainl is bound to recognize the jurisdict ion of thle courts of Cuba to exerciser the righ1t, of ('0omnul1tation of sentence when the rig-ht, is exercised 1)ursulant. to Spanish lawN. The Secretary will not fail to observe thtat, the commutation of sentenice imade in the cases under ('onsideratioll was miade in compliance, wvith. the order-s of the military grovernment, ab~ove set forth. Whether 01 not the Grovernment of Sp~ain will g'o back. of the judgment comimmuting~) the sentence and review 0or consider' the reasons whereby the ('olirt was in(lniced to enter' such judg-ment. ('an not be determined bv the War Department. The determination of the Spanish Governm11ent tas to w~hat it will or' will not consider in connection with such commutation, will doubtless turn upon considerations relating to the comity of nations rather than the provisIons of the treaty oi- the requirements of international law. I undei'stand that the Government of Spain takes the. position that naieCuasnow undergoing, pea seritude in Spain am'e properly a. ch aigtre upon the present government of Cuba, which should assume the tuouble and expense of their further punishment, and Spain is nmow' seeking to induce the United States to accept this view andI permit the return to Cuba of such (convicts now' in Spaini. -If such is the, case, it app)ears to the writer that (comupliance with the request of 510 the military governor of Cuba, made herein, would comIit the United States to the principle advanced )by Spain, that the duty of tlhe sovereign to provide for the carrying oult of court sentences in criminal cases attached to the territory in which tle court was sitting at the time the sentence was imposed, and passed with the sovereignty. To what extent, if at all, this request, if made, would embarrass the State Department in the negotiations now in progress respecting a new or additional protocol between tlhe United States and Spain, I anl not advised. It seems plain, however, that if the matter is referred to tile Secretary of State he should be left entirely free to exercise his judgment and discretion as to the propriety and advisability of presenting the request to the Government of Spain. Further proceedings were had in this mlatter, as follows: JUNE 5, 1901. SInl: The War Department has received a communication from Maj. Gen. Leonard Wood, U. S. V., military governor of Cuba, regarding the commutation by the existing courts of Cuba of sentences imposed by the courts of Cuba under Spanish dominion upon persons convicted of crillinal offenses committed in Cuba, where the convictts are serving out said sentences in prisons situate(l in territory now subject to the sovereignty of Spain. A copy of said communication is herewith transmitted. Also co)py of letter to time military governor of Cuba, dated May 13, 1901, from the Department of State andl government for Cuba, together with the original eight certificates showing the coinlmutation of eight sentences of persons situated as above set forth. Also copy of a report on said matter by the law officer of the Division of Insulai Affairs, War l)epartment. I do not feel at liberty to request you to present this matter to the Governmenl t of Spain. I submit the matter for your consideration and determination. If any further information in regard thereto or further action thereon by the authorities in Cuba is desired by you, please advise me. If the War Department can render no further service in this matter, I await your decision as to the course to be pursued. Very respectfully, yours, ELIFIC ROOT, Secretary of 1l'tr. The SECRETARY OF STATE. D)EPARTMENT OF STATE, W'ashington, Jlne, 28, 19011. SIR: I have the honor to acknowledge the receipt of your letter of the 5th instant, inclosing certain certificates from Cuban courts showing the commutation of sentences imposed on Ramon Ulque y Mesa, Francisco Risco Orihuela, Florentino de la Paz, Pascual Campos, Santiago Ibafiez, Candido Figueroa y Acosta, Tomais Sanchez or Gonzales, and Isidoro Caballero Lozano, who were convicted of criminal offenses committed in Cuba and are now serving out those sentences in Spain. The United States charge d'affaires ad interim at MNadrid has been directed to bring these papers to the attention of the Spanish (overnment, referring to tlhe request of the military government of Cuba that thwee men may have the benefit of the reduction of sentence and to ask to be advised as to the action taken. I have the honor to be, sir, your obedient servant, DAID. J. HILL,.cting &cret ry. The SECRIETARY OF WVAR. 511 IN THE MATTER OF THE CONTRACT BETWEEN THE UNITED RAILWAYS OF THE HABANA AND REGLA WAREHOUSES (LIMITED) AND THE CUBAN AND PAN-AMERICAN EXPRESS COMPANY. [Submitted December 18, 1900. Case No. 1366, Iivision of Insular Affairs, War Department.] SIR: I have the honor to acknowledge your verbal request for an "expression of views" on this controversy, and to comply therewith. This Department is not officially advised that complete and final action on this controversy has been had bv the administrative authorities in Cuba. Governor-General Wood has made an order annulling the contract involved. Subsequently he referred the matter to the administrative council of the island of Cuba. Informal advices are received by the Department from the express company that the administrative council has sustained the legality and propriety of tile order annulling the contract. The complete record of the administrative proceedings herein have not yet been received at the Department, nor has a formal appeal been regularly presented to the Secretary of War. Therefore, a formal report on the matters involved is not presented. A copy of the contract regarding which this controversy exists may be conveniently secured by reference to page 37, et seq., of the brief filed herein by Messrs. Coudert Brothers on *behalf of the express company. An examination of this contract will, in my judgment, disclose that it is of a kind and character which would be sustained in the Federal courts of the United States. (See Express Company cases, 117 IT. S., pp. 1-29.) The objections urged against said contract by the Cuban authorities are as follows: First. That said contract creates a monopoly by giving to the Cuban and Pan-American Express Company the exclusive privilege of conducting an express business on the lines of said railway. In the Express Company cases above cited, the United States Supreme Court held (syllabus): Railroad companies are not required, by usage or by the common law, to transfer the traffic of independent express companies over their lines in the manner in which such traffic is usually carried and handled. Railroad companies are not obliged, either by the common law or by usage, to (lo more as express carriers than to provide the public at large with reasonable express accommodations; and they need not, in the absence of a statute, furnish to all independent express companies equal facilities for doing express business upon their passenger trains. (117 U. S., pp. 1-2.) It does not appear that any other express company is desirous of engaging in the express business on the lines of said consolidated 512 railway. The action of the Cuban authorities seems to have been the determination of an abstract proposition, and not in an existing case. Second. The Cuban authorities assail this contract on the ground that it is therein attempted to relieve the railway company from transporting express matter, and assert that this violates the provisions of the Spanish law and the charter of the railway collpany requiring the railwaT company itself to transport the express matter. The opening paragraph of the contract recites as follows: Nothing herein contained shall bind the railway company to (do any act forbidden or re(luired by its concession or the laws from time to time in force in Cuba. The provision complained of is found in the fifth paragraph of the contract. That paragraph starts out with a limitation as follows: The railway company agrees, so far as it lawfully mayAnd closes as follows: It is, however, expressly stipulated by the railway company that the present agreemlent is in no way meant to alter, inodify, or disturb the duties imposed on the railway company as to mails and other services that may be required by the Governnlent under the terms of the concession. The contract contemplates that the railway company may accei)t express matter for transportation over its lines, and makes provision that such express matter, being received by the railway company, will 1)e turned over to the express company and handled by the employees of the express comp4ny instead of by the employees of the railway company. I can see nothing in this stipulation calling for drastic measures by the Government. Third. The Cuban authorities further object to this contract because it is therein stipulated that the express company assumes to pay all losses or damages to persons or property occasioned during transportation over said railway. The objection made is that thereby the railway company avoids liability. The complete answer to this objection is found in the fact that the railway company can not avoid its liability by the contract with the express company, nor does it appear that the contract undertook such avoidance. The contract appears to be intended to provide indemnity for the railway, and not a limitation orn the railway's liability. Fourth. The Cuban authorities also object to this contract on the ground that it is therein provided that the express company may charge one and one-half the rates for transportation which were in existence at the time the contract was created, and that such rates were put in force in an illegal and unlawful manner. If this objection exists, it would seem that the proper remedy is to regulate the rate and require the acceptance of the lawful amount instead of annulling the contract. The express company represents that it has abandoned the increased rate and now transports express matter at the same rate 513 which prevailed prior to the creation of the contract, and in addition collects Iand delivers express matter without extra charge. From what I am able to learn, both from the papers on file and from information informally received, it appears that after the creation of the contract the express company exercised the rights secured thereby in.such manner as to be abusive. They exacted the payment of rates hiogher than those theretofore prevailing and required their employees to pass through trains and compel the passengers to surrender hand ) nbaggage to the express company and pay a fee for the transportation thereof, and in numerous ways sought to increase their business. This occ:asioned great dissatisfaction, and in consequence thereof the Cuban authorities felt required to protect the public from the action of the express company. Thereupon the administrative authorities saw fit to annul the contract. The express company now represents to the departIment that these objectionable practices have been discontinued. I (entertain the view that the admninistrative authorities of Cuba, in seeking a remedy to correct the abuses growing out of this contract, should have confined themselves to the authority to regulate the conduct of the business and not attempt to exercise the power to abrogate personal contracts. Copy of the foregoing report was transmitted to the military governor of Cuba for his consideration in determining the questions discussed. The action of the government of Cuba was as set forth in the following, order: No. 14.] lHEAD)QUARTERS I)EPARTMENT OF CUBA, Hlabatt, January 15, 1901. The military governor of Cuba announces the following decision in the matter of the validity of the contract existing between the United Railways of Habana and the Cul)an and Pan-American Express Company: Whereas the legal representative of the Cuban and Pan-American Express Company has stated that the express company only claims to be, under its contract, the instrument or agent for a special object of the railroad company; Whereas no delegation or alienation of the powers or responsibilities of the railroad complany have been made to the express company wAhereby the railroad company is in any way relieved of the responsibilities imposed upon it by the laws in force in matters of transportation; Whereas the railroad company, under the existing contract, must receive express. matter from any other company or private person who may present it for transportation and transport it in accordance with the tariffs prescribed by the railroad laws: Therefore the military governor decides that the contract existing between the United Railways of Habana and the Cuban and Pan-American Express Company is valid and lawfli. H. L. SCorr, Aldjutant- (Geeral. 1394-03 33 514 IN THE MATTER OF THE PROTEST OF M. F. VIONDI, AN INHABITANT OF THE ISLAND OF CUBA AND AN ATTORNEY AT LAW, AGAINST THE ORDER OF THE MILITARY GOVERNOR OF CUBA, DATED JULY 29, 1899, BEING NO. 184, HEADQUARTERS DIVISION OF CUBA. [Submitted August 29, 1899. Case No. 701, Division of Insular Affairs, War I)epartment.] The order against which this protest is made is as follows: No. 124. HEADQUARTERS DIVISION OF CUBA, Itabana,,.Jl? 29, 1999. The military governor of Cuba directs the publication of the following order: I. Hereafter all proceedings known as contencioso-administrativos pending before the sala d(e lo civil of the audiencia of Habana, which may have been established against decisions rendered prior to January 1, 1899, by authorities under Spanish sovereignty, are hereby suspended. The said sala of the audiencia shall declare all such cases closed and order that no further action be followed to reach the final decision. II. Imme(iately upon issuing such orders, against which there shall be no recourse, said sala shall require that the administrative record of proceedings, called for by the sala, in virtue of the establishment of the recourse contencioso, be forwarded to the department of justice and public instruction. Said tribunal shall, however, retain the record of proceedings that may have taken place before the same. II1. The parties interested in said recourses (contencioso administrativos) may appear before the military governor prior to September 1, 1899, which (ate will not be extended, to solicit that the decision excepted rendered by the Spanish authorities be revised and that the question which originated the claim be decided. Said petitions shall be filed with the department of justice and public instruction, which will forward them with a report to the military government. All interested parties failing to present their claims within the period above specified shall forfeit their right to claim of any kind. IV. The decision which the military government may render, in the matter of claims mentioned in the preceding article, shall be with respect only to the fundamental and essential parts of the questions involved in the decisions of the Spanish authorities and against which the aforesaid recourses (contencioso adminiistrativos) may have been established. The revision for which petition may be made, according to the provisions of the preceding article, shall not extend to matters relating to infringements of a folrmal character, whether these refer to the procedure or involve the competency or incolmpetency of the authorities or functionaries rendering the decisions to which exception is made. All petitions for revision which refer solely to such matters shall be denied by the department of justice and public instruction, and no action shall be taken oil them. ADNA R. CHAFFEE,.Brig/adier-Generl, Cl ief of Staff. To properly understand the purpose and effect of this order it is necessary to review the Spanish judicial procedure to which said order relates and is intended to supplant. In Spain and her colonies there is established a review of certain administrative actions by appeal to the courts from the decisions of 515 administrative officers. This is known as " cCr'rI) con(ef)c')o (adrTil, i E,,Q't/(tz' r,ti.?? There is a tribunal at Madrid and there were local tribunals in Cuba, Porto Rico, and the Philippines, respectively, having jurisdiction of said actions. The Cuban tribunal consisted of the president of the territorial audiencia, the associate judge of the civil chamber (,xala de lo civio of the audiencia, and four administrative lmagistrates. In Cuba the proceedings to review the actions of administrative officers had to be instituted within three months after the decision of the administrative officer was brought to the attention of the aggrieve'd party. Not only private parties affected by the decision,,but the public administration, have the right to this remedy. T'he proceeding is begun by a complaint (demlanda) w hich isc accolpanied by the documents necessary to show the basis for the )proceedings. To this an exception may be entered on the ground that there is no jurisdiction, or defect of parties to thi proceedings, or a defect in the comIplaint proper. From the decision on tllese points an appeal lay to the Madrid tribunal. If none of the preceding objections are taken, there must be an answer to be accompanied Iy such documents as may be proper and pertineni. Then comes the proof which follows the ordinary procedure and the decision which emblodies a statement of facts and conclusions of law. Upon the occupation of Cuba by the United States, jurisdiction in cases of this character was conferred on the court known 'as the civil chamber (.stla de lo civil) of the audiencia of Itabana. By Order No. 41, headquarters Division of Cubal, (dated June 14, 1899, it was provided that the suprelle court of Cutba should have jurisdiction to hear and determine14. l'etitions for revision in civil, criminal, andl adminlistrtivativ aters (contenlioso admtinistrativo). 18. Appeals fromi the decisions of the audiencia of Habana in allministrative cases (contensioso administrative). (See subdivisions 14 and 18, sec. 7.) By this order the supreme court of Cuba was given jt,risdiction of appeals in these cases, which jurisdiction had theretofore been in the supreme coturt at Madrid. The order of July 29, 1899, against which this protest is filed, undertakes to suspend the proceedings in all cases of this character pending before the court known as.,sla d(c lo civil of the aludiencia of HL)aan,, which involved decisions made by administrative officers prior to January 1, 1899, and requires that said court shall send the records in such cases to the department of justice and instruction, where the further proceedings are to be had. The parties interested are required to file a petition before September 1, 18}99, asking that action be taken in the premises, which action is to be the report on the matter by said department and the decision thereon of the military governor. 516 A1! cases arising on decisions made since January 1, 1899, are still to be heard by the ts<la de lo civil of the Habana audiencia. TIhere seenms to be no extraordinary occasion for making a distinction between cases involving decisions made by administrative officers prior to January 1, 1899, and those made subsequent thereto. There is no question that the cala de lo civil of the audiencia of Habana properly had and retains jurisdiction. The purpose of the order is to deprive the court of jurisdiction and suspend proceedings in certain cases distinguishable fromi those in which the court retains jurisdiction only by the time at which the cause of action arose. But if the reasons for the change were incontestable the order could not be sustained, as it is, in my judgment, contrary to article 12 of the treaty of peace with Spain. That ar'ticle provides as follows: Judicial proceedings pending at the time of the exchange of ratifications of this treaty in tlhe territories over which Spain relinquishes or cedes her sovereignty shall be determined according to the following rules: * * * * * -*- -*2. Civil suits between private individuals which may on the date mentioned be undetermined shall be prosecuted to ju(lgment before the court in which they may then be pending or in the court that may be substituted therefor. I understand the expression "civil suits between private individuals" to mean civil suits involving the rights of private individuals and to embrace actions of the character under consideration. The order depriving the sala de lo civil of jurisdiction does not distinguish between cases pending at the "time of the exchange of ratifications of this treaty" and those instituted thereafter. Even in the absence of treaty stipulations the rule is that as to individual rights a treaty is to be considered as dated at its ratification. (Haver v. Yaker, 9 Wall., 32; United States v. Sibbald, 10 Pet., 313, 323; United States v. Arredondo, 6 Pet., 748, 749.) The mutual exchange of ratifications of the late treaty with Spain was made April 11, 1899. As to cases pending in the courts at said date, the order under consideration is void, being in derogation of the provisions of the treaty. The Spanish law required actions of this character to be instituted within three months after the decision appealed from became known to the party aggrieved. From January 1 to April 11, 1899, is a period of over three months. It follows that all or nearly all the cases to review decisions made prior to January 1, 1899, were pending when the mutual ratifications of the treaty were exchanged. In many instances executive officers in the administration of affairs of their office act judicially. (Sioux City v. Wyckoff, 43 Neb., 265; State ex rel. Wyckoff v. Merrell, 61 N. W. Rep., 754.) This is especially true of administrative officers in Spanish dependencies. Where such is the case, the matters before such officer are 517 "judicial proceedings pending," and where such was the case in Cuba the dlisposition thereof is controlled by said treaty stipulation. A treaty is a law of the land whenever its provisions prescribe a rule 1b)y which the rights of the private citizen ori subject may b)e deterlnined. (In re Cooper, 143 U. S., 472, 503; Edye v. Robert.on, 112 U.S., 580.) A treaty is the supreme law of the land. (Whitney?,. Robertson, 124 Ut. S-., 1)90; United States t%. Rauschcr, 11.9 Ut. S., 4(07; IIauenstein. Lynhamn, 10() U. S., 483; Fellos o. Blacksmith, 19) How., 36;6; Strotlhers v. Lucas, 12 Pet., 410.) T''his rule is of especial force under existing conditions in Cutba, since the provisional government is being 1maintaine(l there by the United States pursuant to treaty stipulation that "the United States will, so long as such occupation shall last, assullle and discharge the obligations that may under international law result froim the fact of its occupation." (Treaty of Paris, Art. I.) This treaty stipulation is one of the bases on which the existing government of Cuba stands, and( is onIe source from which it derives authority. Treaties should be liberally construed, so as to carry out the apparent intention of the parties. (I)e Geofroy R,. Riggs. 133 U. S., 258.) It must have been well known to the distinguished diplomats and statesmen wvho formulated the treaty of peace that ---Though the powers of the military occupant are ablsolute an(l supreme and( iminediately operate upon tile political cond(litions of thle inhabitanits, the nmunicipal laws of the conquered territory such as affect private rights of person an(l property llid provide for the punishment of crime are conlsidere(d as continuing in force so far as they are compatible with tlhe new ordler of things until they are susp)enled or sulerse(le(l by the occupyilg belligerent, and( in practice they are not usually atbrogated, lbut are allowed to remain in force and to be administered 1)y the ordlinary trilunals sulbstantiallly as they were before the oc(cuI)ation. * * * The jul(ges and the other officials connected with the administration of justice may, if they( acceplt tile supremacy of the United States, continue to ad(minister the law of thle land as between man anll main, un(ler the supervision of the American commianler il chlief. (Letter fromn President McKiiiley to the secretary of War, JTlyv 13, 18)98;;ieneral Orders, War Departlllent, No. 101.) The memblers of the Conmtnission must also htave known att the time of their cleliberations, in I)ecenlber, that in the proclamation lt})ove quoted from, published in G(eneral Orders, July 18, 1898, the P1resident had said with reference to the doctrine expressed in the languagege quoted and its recognition in Cub)a: This enlightened practice is, as far as possible, to tbe adherred( to on the lpresent occasion. It therefore seems that the insertion of this stipulation (Article XII) in the treaty was intended to accomplish more than a simple declaration of the usual rule of international law. 518 In the treaty between the United States and Spain dated February 22, 1819, it was stipulated that all the grants of land made before the 24th of January, 1818, by His Catholic Majesty, or by his lawful authorities in the territory ceded, should be ratified and confirmed by the United States. In discussing the purpose and the intent with which this stipulation was inserted in the treaty, the United States Supreme Court say: It is not unreasonable to suppose that His Catholic Majesty might be unwilling to expose the acts of his public and confidential officers, and the titles of his subjects under those grants, to that strict and jealous scrutiny which a foreign government, interested against their validity, would apply to them. (United States r. Clark, 8 Pet., 436, 449.) In the matter under consideration it is also not unreasonable to suppose that Spain was unwilling to expose the acts of its public and confidential officers, and the property rights of its subjects acquired under those acts, to the action of a nilitary tribunal of a country with which it was negotiating the termination of war. Hence the provisions of said Article XII in the late treaty of peace. Respecting the matter discussed in the foregoing report, the military governor was advised as follows (see cablegram, A. G. 0., November 4, 1899): The President directs that you report as soon as possible your reasons for removing the proceedings known as ''contencioso-adniinistrativos" from the jurisdiction of the "sala de lo civil of the audiencia of Habana," and in the meantime,' and until furtllcr orders from the President, the operation of your order No. 124, of July 29, 1899, providing for such removal, is hereby suspended. The matter being reconsidered, the military governor of Cuba issued the following order: No. 2.] IIEADQUARTERIS l)1VISIO(N OF CUBA, lla(bana,.Ja nuarty 3, 1900. The military governor of Cuba directs the publication of the following order: Order No. 124, Iteadquarters Division of Cuba, dated Habana, July 29, 1899, having reference to contencioso-administrativo cases pending before the sala de lo civil of the audiencia of Habana, is hereby revoked. ADSA R. CHAFIFEE, Brigadier-General, Chief of Sta.ff 519 THE DISPOSITION TO BE MADE OF CERTAIN EFFECTS OF MORTIMER COOK, DECEASED, NOW IN THE POSSESSION OF THE MILITARY AUTHORITIES OF THE UNITED STATES IN THE PHILIPPINES. [Submitted February 19, 1900. Case No. 1365, Division of Insular Affairs, War Department.] SIR: I have the honor to report upon a matter arising as follows: Mortimer Cook, a civilian, aged 73, and a citizen of the State of Washington, United States, died at brigade hospital, Iloilo, Philippine Islands, on November 22, 1899, leaving personal property of such value and amount that, after paying the expenses of his illness and burial. there remained one watch, one Ihedal, one trunk containing wearing apparel, and $673.68, proceeds of the sale of the remainder of his personal effects at the time of his death. A few hours prior to his death and after he had been informed of his approaching dissolution, the said Mortimer Cook stated to his attending surgeon, G. H. Calkins, acting assistant surgeon, U. S. A., and W. G. Haan, captain and adjutant, Tenth Infantry, U. S. V., that he desired in case he died that all his money and effects should be sent to Mrs. Farrie Cook Litchtield, at Plaza Hotel, Chicago, Ill. After the death of said Mortimer Cook, the commander of the United States forces in the Visayan district, in which Iloilo is situated, directed Capt. W. W. Wotherspoon, Twelfth Infantry, U.. V., collector of customs at the port of Iloilo, to take charge of and close up the estate of the deceased, acting in said matter in the capacity of a United States consular agent. This dlirection was eml)odied in the following order: To t7he ( ollector of ('11stoms,ld(1 Actin United St(tes Consuler Agent, Iloilo, P. I. SiJ,: In the absence of any direct rep)resentative of the late Mortimer Cook, an American citizen, who died at the hospital in Iloilo, P. I., November 22, 1899, and there beingr no civil functionary with appIropriate powers in this city, you are directed, in your capacity as United States consular aient, to take charge of the estate of the late Mortimer Cook and dispose of the same in accordance with United States laws and consular regulations. Pursuant to such direction, Captain Wothelrspoon reduced the personal estate of the deceased to his possession, paid the expenses of his final illness and interment, and remitted the cash ballance of $673.68 to the Secretary of the Treasury of the United States, as required by paragraph 385 of Consular Regulations of the United States. In further pursuance of said consular regulations, Captain Wotherspoon transmitted the watch and medal belonging to said estate to the Secretary of State, together with a report of his action regarding said estate, an inventory of the effects of the deceased, an account current of money received and expended, with proper vouchers in regard thereto. 520 The report shows that Captain Wotherspoon retains possession of the trunk, a portion of the wearing apparel, and certain papers, which he states are of no. salable value at Iloilo and are retained subject to further disposition. Upon the receipt of the report and two packages containing the effects of the deceased forwarded to the State Department, the Secretary of State referred the original communication from Captain Wotherspoon and the packages to the War Department by letter from the Hon. Thomas W\\. Cridler, Third Assistant Secretary of State. By this action it is understood that the State Department declines to assume responsibility in the further disposal of the effects of Mortimer Cook, deceased, and entertains the view that jurisdiction in the premises attaches to the War Department. There also appears in said letter from the State Department a suggestion expressed as follows: It would appear from an order to Captain Wotherspoon from military headquarters, which accompanies the letter, that he is performing duties similar to those performed by a consular agent, and that for that reason he signs him.self acting consular agent. I would suggest that the attention of Captain Wotherspoon be called to the fact that as the Philippines have been taken possession of by the United States and are now un(ler the control of the War Department, there can no longer be either actual or acting consular officers in these islands and that no reports can properly be made by him to this Department; By Circular No. 16, Division of Customs and Insular Affairs. issued by the War Departm.it May 11, 1899, it was ordered: Collectors of customs appointed by. the military authorities of the United States at ports in territory under military government are hereby directed to perform the duties formerly belonging to United States consuls or consular officers in such territory, so far as concerns seamen, vessels, clearances, etc. This order was necessary to enable the territories to engage in collmerce with this and other nations, and I am advised that the action of the collectors in the performance of their duties as consular agents in matters relating to commerce are recognized by custom-house officers of the United States and of other nations. It will be observed that the order above quoted authorizes the performance of such duties as concern seamen, vessels, clearance. etc., and therefore limits the authority of such officers to matters involved in the commerce of the country, and would not authorize them to( act as consular agents of the United States in administering upon the estate of a citizen of the United States. From the papers filed herein it (loes not appear what action has been taken by the Treasury Department regarding the money derived fromr the sale of the effects of Mortimer Cook, which has been remitted to the Secretary of the Treasury. This Department has, however, 521 received the following letter from the Auditor of the Treasury for the State and other Departments: WASHINGTON, 1). C., Febrtoary 15, 1900. Hon. G. D. MEIKLEJOHN, AssiSt(ot Secretary' of TTWar, altshi'itol, I). C. SIr: I have to request that this o'ice may be furnished with the inventory of the effects of Mortimer Cook, deceased, together with what information has been received by the War I)epartment in regard to the heirs of the said deceased. The Third Assistant Secretary of State informed this office on the 1st instant that the original report and its inclosures, of the estate of Mr. Cook, received from Captain Wotherspoon, Iloilo, P. I., were sent to the War Department. Respectfully, ERxNST ( T. TvIMME, A-(,i,';,,'. 1'. C. A. Apparently the State Department refuses to consider the collector of the port of Iloilo as authorized to exercise the powers of a consular agent of the United States in the administration of estates of American citizens, deceased, while the Treasury Department entertained the view that he is authorized to exercise such powers. It will be seen that the first question presented is, to what )Department does jurisdiction attach? If the holding of the State Department is correct, the order of Captain Wotherspoon to proceed as consular agent was without authority and nlust be held as simply a direction that, as an officer exercising authority in territory sul)ject to martial rule, he should be guided by rules prescribed for the action in such cases by consular agents of the United States, in which event I am of the opinion that the Treasury Department would not acquire jurisdiction, and the proper course would be for that Department to transmit the funds realized froIm the sale of the effects of Mortimler Cook to the War Department, and the further action in the matter be taken by this Department. If the State Department refuses to recognize or consider the collector at the port of Iloilo as a consular agent of the United States possessing authority to act officially in matters relating to the estate of a citizen of the United States who dies in that collection district, it would seem that the War DLpartment, in the absence of an Executive order conferring such authority, can not deal with this property as having been administered upon by a consular agent of the United States and thereby subjected to the rules and regulations established for the disposal of estates so administered. I regret the necessity of being obliged to report this conclusion, for a very happy solution of the matter for this Department would be to allow the Treasury Department to assume responsibility for further action herein and terminate the proceeding in this Department by noti 522 fying AMrs. Farrie Cook Litchfield, at the Plaza Hotel, Chicago, 111., and the persons who may hereafter make inquiry, where the property is deposited. This Department, however, is charged with the duties of civil government in the Philippine Islands at the present time, and upon it primlarily devolves the protection of rights and property therein. It would appeal from the papers herein that said Mortimer Cook desired to make a gift of said property to the said Farrie Cook Litchfield, either inter vivos or catsa mortis. From the meager account set forth in the papers herein of what took place at the time he made known his desires to the officers attending him it does not specifically appear that he delivered the property to anyone acting as the representative of the donee. Delivery is essential to the completion of a gift either ieter vi'ros or catusa,)lOrtis. If it can be established that the deceased made a complete gift of the property, an easy solution is afforded of the entire matter by simply carrying out the requirements of the gift by delivering the property or proceeds to the donee. If the gift was completed the title passed to Mrs. Litchfield, and theproperty does not now belong to the estate of the deceased. If the gift was completed the gentleman accepting its delivery would act as a private citizen and not as an official, and the question of authority would not be presented. It would probably hasten the final disposition of this matter if further inquiry were made to ascertain the facts in regard to the delivery of this property. If it shall appear that this property was the subject of a completed gift to Mtrs. Litchfield, the Secretary of War may then elect to consider his relation to the property as being that of a private citizen whose services are sought to be utilized for the purpose of conveying said property to the donee. If his discretion or sense of propriety prevents him from performing such service, it would seem proper to return the property to the collector of the port of Iloilo with instruction to adopt other means of delivering the property to Mrs. Litchfield. The,ih'cial relation of the Secretary of War to this property arises from the fact that Iloilo is subject to lmartial rule and, to quote the -language of the military conimmander of the district, 'there being no civil functionary with appropriate powers in this city," it was proper for the military authorities to take charge of said effects and determine what disposition should be made thereof. If this view of the matter shall be accepted by the Secretary of War it would seem that, by virtue of his powers as the head of said military government, he may consider said property as still being within the custody and possession of the military government of Iloilo, and subject to such order as he may see fit to make in regaid thereto, or the 523 prolperty may be returned to the immediate jurisdiction and possession of the military authorities in Iloilo with instruction regarding their further action ill exercising the powers arising from the condition of martial rule, whereupon the military authorities could determine the question as to who is entitled to receive said property and make delivery thereof. The attention of the Secretary of War is directed to the fact that the property is now within the United States, and that a proper proceeding would be to subject it to the jurisdiction of one of the probate courts of the United States, and that the Secretary of War nma, in his discretion, select the court to whose jurisdiction and custody the property shall be subjected. Upon the property being within the territorial jurisdiction of one of the probate courts of the United States, the court would be at liberty to assume jurisdiction thereover, advertise for claimants, and hear and determine the claims made thereto. In this (onnection attention is directed to the report of Captain Wotherspoon to the Secretary of State, wherein he says: No, ]lhirs have presented themselves and nothing is known here as to lhis heirs. * e From the p)hotographs found among his effects it appears proballe that his wife is still living, but nothing is known of her address. Allow me further to suggest the propriety of notifying IMrs. Farrie Cook Litchfield, at Plaza Hotel, Chicago. regarding this matter, and affording her the opportunity to take such steps as she miay deem advisable to protect her interests. if any exist. The Secretarv of 'War decided to act in this matter as a1 private citizen, a.nd thereupon turned over the property to the heirs of the deceased. EXTRADITION OF FUGITIVES FROM JUSTICE WHO HAVE TAKEN REFUGE IN CUBA UNDER MILITARY GOVERNMENT. [ulomnlitted January 9, 1900. Case No. 12'S4, Divisioln of Insular Affairs, War Department.] SIR: I have the honor to acknowledge the reference to me of the letter fromi the Mexican ambassador at this capital, addressed to the Secretlary of State, directing attention to the fact that there is now in the island of Cuba a person not of American nationality who is accused before the tribunals of Mexico with having committed a crime on Mexican territory, and requesting information as to whom to present a request for extradition, and whether provisional detention of the fugitive will be ordered; also, what rules are to be followed to secure extradition from said island. 524 The United States is maintaining a provisional government in the island of Cuba for the declared purposes of securing the pacification of said island and affording an opportunity to the inhabitants thereof to erect and maintain, for and by themselves, a government of and for said island. Pursuant to said purposes, the United States required Spain to relinquish all claim of sovereignty over and title to Cuba, and bound itself by treaty as follows: And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property. By reason of its geographical location the island of Cuba is (easy. of access by ordinary sailing craft from many ports of tl:e [tnitd(l States, Mexico, the states of Central America, and the states: of northern South America. Thelefore, if Cuba is to be a "city of re'fl_'" for the criminals of these countries, to say nothing of the wo;'ld at large, it will certainly render the task of pacification and the estabilishment of a stable government therein a most difficult undertaking. To prevent it from being an asylum for criminals is clearly a necessity, and necessity gives warrant for action on the part of military officers charged with performing the function of civil government, when the necessity directly relates to the purpose for which the mIilitary government was established. The provisional government now being maintained in Cuba by- the United States is undoubtedly authorized to exercise the "police powers" of a State, one of which is to apprehend and deliver to the proper tribunals persons charged with crime. One of the obligations that, under international law, result from the fact of the occupation of Cuba by the United States is to promlote the peace and welfare of the world. One means of accomplishing this is to enable the tribunals of various Governments to deal with violators of the law. Every Government has a right to exclude from the territory under its jurisdiction persons who, from criminal propensities or other rlasons, are unworthy its protection, or are calculated to work injulry to the interests of the Government. This right is not created by extradition treaties. It exists independent of a treaty. Extradition treaties are simply agreements regulating the exercise of this righlt },v the Government in whose territory the wrongdoer is found. Also, every Government has a right to punish the violators of its laws, and for that purpose may apprehend persons charged with such offenses.. and extradition treaties are intended to regulate the exercise of that right not to create it. The provisional government of Cuba possesses both of these rights, and, in the absence of treaty regulations, is to be governed and con 525 trolledl b)v the orders of the officers unlder whose direction the said provisionill government is now being maintained. In tile case of Ker lr. Illinois (119) U. S., 436$, 442), the Supl'elie Court s'ta: There is no language in this treaty, or in ally otherl treaty made by this country on the slubtject of extra(dition, of which we are aware, which says in terins tllat a party fleeing f roim the Unitel States to escape punishment for crime becoiies therel)y entitled to ansylun m in the country to which he has- fle(l; ind(eed. the albsurdity of suchl a p)rop,.o)sitioll woul(l at once prevent the making of a treaty of that kind. It will not be for a n omnent contend(ed that the (;overnment of Peru could not havcle orderel Ker out of the country on his arrival, or at; any period of his resi(lence there. If this couldl be done, what becomles of his righlt of asylulm' Nor (cal it b)e (oubted tllat the Government of l'eru could of its own accor(l, withl-out any (ellmand frol- the lUnited States, lhav-e surrendered Ker to an agent of the State,,f Illinois, an(l that such surrendler woul(l have l)een vali( within the (loniilion. of l'eru. It is i(lle, therefore, to claimn that, either by express terms or bv inlplication, there i giiven to a fugitive from justice in one of these countries any right to reimain and( residle in the other; and if the righlt of asylum m1 eans anything, it imust mean this. The right of the Government of Peru voluntarily to give a party in Ker's condition all as!-lull in that country is quite a d(ifferent thing fronm the right in him to. demand and( insist upon security in su(ch an asylul. The treaty, so, far as it regulates the riglit of asylum at all, is intended to limit this right in the case of one wt.ho is proved to h)e a criminal fleeing fronm justice, so that, onl proper d(leand anl pJrocee(lings had therein, the Governnment of thle country of the asylull shall d(eliver hilml uI to thle country where the crimle was committed. And to this extent, and to this alone, the treaty does regulate or impose a restriction upon the right of the Gov-ernniment of tile country of the asylum to plrotect the criminal fronm remioval therefroml. It is true that in the absence of provisions of treaties onl the subject the Government of a nation is not o/7,liycd to surrender fugitives froiu justice, but it is not /)re'vented,, from doing so. It mayIl })e done as an act of coumity, and lies within the discretion of the Government whose action is invoked. Upon this question the Supreme Court of the UTnited States, in United States?,. Rauscher, 119 U. S., 407, 411, 412), say: It is only in modern times that the nations of the earth have imposed upon thelmselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed( for trial and punishment. This has been (lone generally by treaties made by one independent Government with another. Prior to these treaties and apart fromn theml it may be stated as the general result of the writers upon international law that there was no well-defined obligation on one country to deliver up such fugitives to another, and, though such delivery was often made, it was upon the principle of comity and within the discretion of the Government whose action was invoked. I aml of the opinion that a proper procedure in such cases as the one presented would be as follows: First. The Government desiring the apprehension and extradition of a person accused before its tribunals, who has taken refuge in Cuba, should present to the Secretary of State duly authenticated docullments showing the criminal proceedings instituted in the courts of the country seeking extradition. Second. The Secretary of State should transfer the papers to the Secretary of War. Third. The Secretary of War, if he deems the case a proper one in which to exercise the powers invoked, will issue an order to the military governor of Cuba to cause the accused person to be apprehended and turned over to the Government lmaking the application. The views expressed and the procedure recommended in the foregoing report were approved by the Secretary of War and communicated to the State Department as the vivws of the War )Department. (See War Department letter of January 9, 1900.) The State Department informed the Secretary of War that the Mexican G(overnment had been advised by the State Department that the procedure adopted by the War Department was the proper one to be pursued. (See State Department letter of January 13, 1900).) IN RE CLAIM OF DON JOSE CAGIGAS AGAINST THE MILITARY GOVERNMENT OF CUBA FOR DAMAGES TO THE TUG CATALINA IN A COLLISION WITH THE GOVERNMENT BOAT NARCISO DEULOFEU IN HABANA HARBOR. [Submitted Juine, 1901. (ase No. 2866, )ivision of Insular Affairs, War Department.j The question involve(l is an admininstrative one, to wit: Shall the military government of Cuba consider itself bound by the measure of damage prescribed by the cole of commerce in force in Cuba for ascertaining the damiage to vessels sunk by collision with other vessels'? SIR: I have the honor to acknowledge and (comply with your request for a report on the above-entitled matter. The attention of the War Department is called to this claim by a communication from the State Department (May 22, 1901), transmitting copy of note from the Spanish minister at this capital inclosing a memorandum in support of said claim. The State Department desires to ascertain the views of the Secretary of War before replying to the Spanish minister. (Doc. 2866.) This claim has not heretofore been presented to the War Department. If proceedings have been instituted thereon they are still pending in Cuba. The only information regarding said claim possessed by the War Department is derived from the memorandum presented by the Spaniish minister. From that mlemorandum it appears that Don Jose Cagigas, a Spanish subject residing in Cuba, was the owner of 5'27 the tug Catalita, which was sunk in Htlabana harbor, on November 8, 1899, -by the governmen bot boalt V('ciso DeIlfct, in the service of the custom-house, in a collision, which upon investigation by the captain of the port, 'an Americ(an officer, was declared h}y him to have been occasioned by want of skill and care on the part of the officers in charge of the government boat. It further apl)pears froml said mlemoranduml that the C(,ttliot sunk immediately after the collision (November 8, 18!99), and remained under water until somle tinme iln December, 19, S at which time the military authorities of the United States in Habana, uplon their own motion, ra'ised said tug, made certain repairs thereon, and onl April 2, 1901, tendered said boat and $9(00 to Don Jose Cagaigs in full satisfaction of his loss and dalmage. Don Jose" Cagigas declines to concur in this action of the military government, and insists that under the laws in force in Cuba he is entitled to a money compensation elqual to the fair market value of his tug at the tinme it was sunk. In support of this contention, he appeals to articles 82Y and 833 of the code of commerce, continued in force in Cuba by the military government. These articles are as follows: ART. 826. If a vessel should collide with another through the fault, negligelnce, or lack of skill of the captain, sailing master, or any other member of the comp)lement, the owner of the vessel at fault shall indemnlify the loss and damage suffered after an expert appraisal. * * * * * * * ART. 833. A vessel shall be considered as lost which, upon being run into sinks immediately, and also any vessel which if obliged to make a port to repair the damages caused by the collision should be lost luring the voyage, (or should b)e obliged to be stranded in order to be saved. It appears to the writer that article 833 prescribes a rule or measure of damage for injuries resulting from collisions of vessels, which rule is that where a vessel sinks as a result of a collision attributallle to negligence, the loss is to be considered as ftlal, without regard to the actual condition of the vessel, or the ftct that it (could be raised and repaired. If this controversy were btetween private individuals, it appears to the writer that Don Jose Cagigas would be within his legal rights in calling for the enforcement of this rule, and I see no reason why the military governnment of Cuba should resist the application to itself of a imeasure of dnamage which it enforces against others. The code of commerce which prescribes this rule likewise prescribes a procedure for its enforcement, and in order to secure the benefits of the rule the procedure should l)e followed. The onmission so to do, deprives the party asserting the rule of the desired advantage. The memorandumn presented by the Spanish minister does not dis 528 close whether or not the claimant has fulfilled the conditions precedent devolving upon him under the provisions of said code. It appears from said memorandum that the "adjutant-general at Haallna" has notified Don Jose Cagigas that he must accept the tender of the repaired tug and $900, or ' seek redress through other channels," which doubtless caused the application to the Government of Spain. It does not appear from the memorandum that the military governor of Cuba has approved this action of the "adjutant-general tat Habana," and therefore the claimant has not exhausted his remedies in, the island. The established practice of the War Department is to require claimnnts asserting individual rights to exhaust the means of securing relief in Cuba before consideration is given their claims by the Secretary of War. The Secretary of War is at liberty to instruct the military governor of Cuba} as to questions of administrative policy in Cuba in advance of actual instance being presented or determined; and it appears that an administrative question is involved herein, to wit: Shall the military government of Cuba consider itself bound by the measure of damage prescribed by the code of commerce in force in Cuba for ascertaining the damage to vessels sunk by collision with other vessels? The determination of this question devolves upon the Secretary of War, and is to be declared at such time as his discretion shall deem advisable. The Spanish minister, in his communication to the State Department, with acumen and precision differentiates this question from its attendant facts and circumstances and presents it as follows: LEGATION OF SPAIN AT WASHINGTON, Washington, May 15, 1901. MIR. SECRETARY: I have the honor to transmit herewith to Your Excellency the memorandum of a claim that Don Jose Cagigas, a Spaniard, has instituted against the military authorities of the island of Cuba, and which has not as yet received a satisfactory solution. I do not consider it expedient to dwell upon the merits of the case, which are clearly set forth in the inclosed memorandum, whose views are concurred in by this legation, and I will confine myself to drawing the attention of the American (overnment to the infraction of the existing laws of the island of Cuba constituted by the demand that Mr. Cagigas either accept in satisfaction of his claim a suni fixed by those authorities alone or forego any indemnification. I shall not at this time enter upon a discussion of what that indemnification should be, but will merely ask that the laws in force in such matters in the island of Cuba be respected in the case of Mr. Cagigas, and I beg Your Excellency will call thereto the attention of the Secretary of War, in whose Department I believe the antecedents of the case are filed. Thanking Your Excellency in advance, I improve this opportunity of reiterating the assurances of my highest consideration. ARCOS. If the Secretary of War shall be of the opinion that an appropriate occasion has arisen for the determination of this administrative question, the request of the Secretary of State will be complied with by communicating such determination to him. - 5 29 The Secretarv of War determined the administrative policy for the grovernment of Cuba in this and analogous cases as follows: JUNE 5, 1 901. SIR: The War Department is in receipt (If a communication fromt the State D~epartmnent transmitting copy of note fromt the Spanish minis ter at this caipital calling attention to the claim of IDon Jose' Cagigas for (lamages occasioned hinm Iy the sinking of the tug Catalinadin Habana Harbor, resulting fronm collision with the customhouse boat Na~rciso Deulo~fev, and time proper measure of damages to be adopted in aiscertaining the indemnity. Upon consideration thereof I am of the opinion that in cases of this character the military government of Cuba shouldl submit to the same rule which would be enforced against private parties unmler like condlitions, which I understand to be that lprescribedl in articles 826 and 833, Code of Commerce, in force in Cuba, provided the claimant followNs the p~rocedlure prescribed b~y saill Codle. I inclose von copy of my.) letter to the Secretary of State respecting this moatter. Very respectfully ELIHU lROOT, ~SecrefitrY o~f Wm or M\aj. (-en. LEONARD WOOD, U. S. '., fi~lditar!/ Gorernor of Ciba. IN RE CLAIM OF THE EASTERN EXTENSION TELEGRAPH COMPANY FOR PAYMENT BY THE UNITED STATES OF SUBSIDY PROVIDED FOR BY THE TERMS OF THE CONCESSION GRANTED BY THE GOVERNMENT OF SPAIN.1 L-hblm itc,Jm-s2101 e~ No. 219,Im Divisio of Iinso1 ir Affhirs, Wvar IDepartbment]l SYNOPSIS. 1. li)v the terms of the treaty of peace the Unitedl States (lid not assume tile l)hligrations, of this character resting 111)01 Spain. 2.Obligations of this~ cIharacter did not pass to the United State.9 by operation of international law ujpon transfer of sovereignty. 3. The rule of international lawv as stated by the Transvaal concessions, comnmission, 1901. Sin: I h~ave the hionor to ackniowledge receipt. by reference, of a coinmunicaition dated Mlav 23, 1901, from the Chief Signal Officer, United1 State~s Armyv to the Secr-etarv of Wiar,' re'spectingv the concessionlary rights,. of the Eastern Extension Telegraph Company 11i the Philippine lslland —.- Nv ith request for remarks. In response thereto.1 have the further honor to report as follows. in s~aid communication the Chief Signal Officer says: With reference to the Visavan coilcession, it is ibelievedl that. it. should be recognmizedl as soon as tile Eastern Extension Telegraph Company and tile Giovernmnent of the Umnited States can agree 111o01 tile date on which the payment of the subsidy begins,, and_ as to the proper construction of certain ilortions of tile origimlal (concession. As to the payment of this concession, the, Chief Signal Officer lbelieves, with General MacArthur, that while tile legal obligatiomi of the Unlited States to pay this subsidy wvould mlot technically exist Iprior to time ratification of the treaty of peace and the formal tramlsfer of sovereignty fromt Spain to the United States, yet on account of the p~ermlissionl granltedl this comipany andl its action thereunder an obligation in equity wouldi arise to pay, at least, fromn and after the date of the restoration of the service. aSee report on claim of Manilla Railway Co., p. 1 77. '139,4-03 ~34 530 From the foregoing I conclude that the Chief Signal Officer is of opinion that the United States is legally bound to carry out the contract between the Spanish Government and the cable company, whereby Spain agreed to pay said cable company a subsidy. If such is the view intended to be expressed, I most respectfully dissent, for the reasons set forth in my report, dated December 21. 1899, on a claim of like character presented by tlhe Manila Railway Company. A copy of said report is herewith transmitted. In said report attempt is made to demonstrate the correctness of two propositions, (1) that by the terms of the treaty of peace the United States did not assume obligations of this character resting upon Spain; (2) that obligations of this ch(.aracter did not pass to the United States by operation of international law upon cession of sovereignty over the Philippine Archipelago. The questions involved in these propositions, as presented by the case of the Manila Railway Company, were referred to the AttorneyGeneral by the Secretary of War. A copy of the opinion of the Attorney-General is herewith transmitted. As understood )by me, the Attorney-General was of opinion that the obligation to pay the subsidy did not pass from Spain to the United States (pp. 6 —7 and 9). The Attorney-General was, however, of the opinion that, if the islands continued to receive the benefits arising from the maintenance of said railroads, equitable considerations justified a new and original agreement with the company regarding subsidy, and negotiations therefor should be conducted with reference to existing and prospective co,clitions rather than obligations. The attention of the Secretary is directed to the report of the Transvaal concessions commission, dated April 19, 1901. This commission was appointed by the English Government "to inquire into the concessions granted by the government of the late African Republic.' In said report appears the following: (" Blue Book" for June, 19(01.) 9. It is clear that a state which has annexed another is not legally bound by any contracts made by the state which has ceased to exist, and that no court of law has jurisdiction to enforce such contracts if the annexing state refuse to recognize them. * -*- * 10. Though we doubt whether the duties of an annexing state towar(l those claiming under concessions or contracts granted or made b)y the annexed state have been defined with such precision in authoritative statement or acted upon with su(ch uniformity in civilized practice as to warrant their being termed rules of international law, we are convinced that the best modern opinion favo-rs the view that as a general rule the obligations of the annexed state toward private persons slhould 1'e respected. Manifestly the general rule must be subject to qualifications, e. g., an insolvent state could not iby aggression, which practically left to a solvent state no other course but to annex it, convert its worthless into valuable obligations. * * * The Eastern Extension Telegraph Company is an English concern, and it might be well to call its attention to the foregoing declaration of the rule of international law made by said comlmission of the English Government. 531 If it be established, either by mutual recognition or authoritative declaration, that the United States is not bound to carry out the executory contract of Spain, i. e., to pay this subsidy because Spain agreed to pay it, the way would be cleared for taking up the matter of subsidy as an original proposition, il the consideration of which due regard could be had for the several important matters referred to in tie communication of the Chief Signal Officer. It appears to me that the proper way to deal with this question of subsidy is to treat it as though it was an original application made lby a company contenmplating the construction of a qya.si public improvemlent. CLAIM OF VICENTE AND JOSE USERA RELATING TO AN ALLEGED SPANISH CONCESSION FOR THE CONSTRUCTION OF A TRAMWAY ON THE PUBLIC HIGHWAY FROM THE CITY OF PONCE, PORTO RICO, TO THE BARRIO DE LA MARINA." [Submitted June 1, 1899. Case No. (696, Division of Insular Affairs, War )cepartment.] Proceedings examined and found to b)e insufficient to create a colmplete( grant or concession. SIR: I have the honor to acknowledge the receipt of your request for a report on the clainm made by George S. Keck, George S. Willits (deceased), and Alan L. Reid, that on and prior to Februlary 24., 1897, proceedings were had il accordance with the Spanish law then in force in Porto Rico, whereby a franchise or concession was granted to Vicente Usera and Jose Usera, citizens of Porto Rico, for the construction, operation, and maintaining of an electric tramway over and uponl certain streets in thle city of Ponce and thence over and upon the public highway between the city of Ponce and the Barrio de la Marina (harbor), being the seaport of said city. In response to said request, an examination has )een made of the docunlents relating to said franchise on file in this I)()partmnlclt. From said documents it appears that prior to Novellber 24, 1896, proceedings were had of such kind and character as to induce the Crown of Spain, then possessed of full and complete sovereignty in Porto Rico, to grant by royal decree a permit for a franchise or concession for an electric tralmway, according to the plans submitted by Messrs. Vicente and Jose Usera. It will be observed that this royal grant does not confer the concession upon Messrs. Usera; it simply permits the construction according to the plans submitted by those gentlemen. Under the Spanish law in Porto Rico a tramway is a railroad constructed on the public highways. (Article 69.) While the entire territory to be traversed by this proaSee 22 A. G. Op., 551. 532 posed tramway is within the limits of the municipality of Ponce, the proposed track will occupy a state highway for a large portion of if not its entire extent. It is therefore subject to the following provisions of the. Spanish law: ART. 73. The concession of tramways belongs to the secretary of the colonies, when tlhe works are to occupy the highroads of the state or shall simultaneously traverse highroads of the state and highways of the province and municipalities. *X- -X- -X-* * * * *ART. 76. Tramway concession can not be granted for more than sixty years, and shall l)e subject to an auction in regard to the maxinmum schedule of rates and to the duration of the concession. From the "Regulations for the execution of the railroad law of the island of Porto Rico," promulgated January 27, 1888, the following is quoted: ART'. 93. The secretary of the colonies, who has the power to grant the concession in the cases specified in article 73 of the law, shall immediately advertise the auction of the works for the period of two months, on the basis of the approved plan. The auction shall take place in accordance with the provisions of article 76 of said law respecting thle schedules of rates, the equality of propositions as to the duration of tlhe concession, aind with the understanding that in all cases the right of legal preference shall be reserved at the auction to the author of the, approved plan, and if the latter should not take advantage of the preference, tlie successful bidder shall pay him within one month the value of the plan, in accordance with the appraisal made. The terim "'approved plan," as used in the foregoing article, means as follows: The person desiring to secure a concession allowing' the construction of a tlramway on a state highroad, prepares the plan and details conprising the general project and sul)mits the same to the secretary of the colonies. The plans are examined by certain specified officers, engineers, and boards, who report thereon to the secretary of the colonies. who considers their reports and approves or disapproves the plal,. Among other reports is one showing the estimated cost of constructing the tramway. If the plan is approved, its price or coinmercial value is fixed by appraisal; that is, the value of the work performed in preparing said plan is fixed. Thereupon the right to carlry out the general project in accordance with said approved plan is sold at auction in accordance with the provisions of article 93, as abov-e quoted. In order to secure the right to bid at said auction, a depo. it of 1 per cent of the estimated cost must be made by the prospective bidder. From the documents on file herein it clearly appears that the plan prepared and presented by the Messrs. Usera became an "approved plan" for the construction of the proposed tramway, and that said Messrs. Usera made the required deposit of 1 per cent of $100,000, the estimated cost of construction. 533 They therefore owned the plan and were qualitied to bid at the auction to be held in accordance with article 93 of the regulations. It does not appear that said auction was ever had or dispensed with. I say "dispensed with," because there may have been some way of avoiding an auction sale, though it has not come to nmy knowledge. By royal decree, the provincial government in Cle, might exempt the letting of contracts for public works of extraordinary urgency froml said requirement, but 1 know of no such provision in regard to tranlmways in Porto Rico. The Spanish law of railroads in Porto Rico provides a means of securing the right to build a railroad of the kind contenlplated herein without a public auction. That method is as follovs (Regulations of Railroad law): ART. 20. In the case to which the preceding articles refer, namely, when it is a question of a petition for a concession without sti)sildy, and for which only one proposition shall have been presented, said concession shall be granted without the formalities of public auction; but always by means of a law, as provided for in article 27 of the Law of Railroads. To this end the secretary of the colonies shall present to the Cortes the proper form of law, accompanie(l lby all the (oculients mentioned il article 25. of the Law of Railroads an(l in the corresponding articles of these regulations. ART. 21. The law to which} the preceding article refers leing passel, and the bond of 3 per cent of the amount of the estimate being dleposited within the time fixtel lby article 16 of the Law of Railroads, there shlall be issued to the intereste(l party, or to the company which may have solicited the concession, the proper instrument, making the contract a public document, and including in it, verbatim, the document -of general conditions, the special law of concession, the special and( economic con(litions, and schedule of maximum rates. 1 do not understand that it is claimed that the Spanish Cortes ever passed such special act for the benefit of Messrs. Usera. I am, therefore, of the opinion that Messrs. Usera did not acquire a frlanchise right to construct said proposed tramway by the proceedings set forth in the documents submitted. They did, however,.acquile certain inchoate rights, which are property, and the protection and enforcement of which said property rights are imposed upon the United States by the stipulations of the late treaty with Spain (sec. 8, treaty with Spain, Paris, Dec. 10, 1898). Not only must the United States protect aid enforce said property rights, but the treaty provides that the cha:nge of sovereignty "c(t.,ano i),,I<n rz.lpcct no,,pa;'r the property or riglhts * * - of individuals." The Messrs. Usera, or their assigns, have the right to call for an auction sale of the franchise right, to secure which their proceedings were inaugurated, which said auction must be in accordance with the Spanish law and their rights protected as by that law provided. (Bryan c. Kennett, 113 U. S., 179, 192, and cases cited; Strother v. Lucas, 12 Pet., 410, 434; Hornsby '. United States, 10 Wall., 224, 242.) 534 Tr'i.s case was referred to the Attorney-General, who colcurred in the conclusion that the proceedings under Spanish dominion were not sufficient to create a completed grant; but disapproved the conclusion that the applicants had a right to call upon the military government of Porto Rico to complete the grant. Therefore he advised the Secretary of War as follows (22 Op., 551, 554): The Messrs. Usera have not a complete and vested franchise or concession for the construction of a tramway from Ponce to Port Ponce, and that the War Department is without power to exercise the prerogatives of the Government to grant or complete such (colcessioln. The matter was disposed of pursuant to the opinion of the AttorneyGeneral. IN THE MATTER OF THE CONTRACT FOR A MARKET HOUSE AT SANCTI SPIRITUS, CUBA, AND THE RIGHTS THEREUNDER OF PRIMITIVO GUTIERREZ, A SPANISH SUBJECT. [Submitted May 10, 1901. Case No. 1237, D)ivision of Insular Affairs, War Department.] Tile miilitary government having rescinded the order suspending the operation of the contract involved herein, the refusal of the municipal authorities to comply with the demands of complainant creates a controversy ordinarily to be resolved by the courts. SIR: I have the honor to acknowledge your request for a report on the above-entitled matter; and, responding thereto, I have the further honor to report as follows: In 1897 the municipality of Sancti Spiritus was indebted to Primitivo Gutierrez in the suni of $15,582.35 for light furnished to the city during the years from 1878 to 1881, inclusive; and said municipality also desired the erection of a market house for the convenience of the inhabitants of the town. On September 1, 1897, the municipality entered into a contract with Gutierrez, in which was recited the indebtedness referred to, and by said contract Gutierrez agreed to erect a market house at his own cost according to plans and specifications provided by the municipality, and also to pay the municipality $1,000 a year for a period of fifteen years, and at the end of that time to turn over the market house to the municipality free from any obligation to him, and to consider the existing indebtedness for lights discharged. The municipality on its part agreed that, in payment of its existing indebtedness to Gutierrez and for money expended in the construction of the market house, he should be entitled to receive during the life of the contract, for his own use, the rent of spaces and constructions in the market house at and for certain fixed rates and prices; that he should have the right to the rent of certain designated places outside 535 the lnarket house. and that venders of certain market supplies selling their w1ares outside the market house should pay him a certain suml per day. and that their sales should be confined to certain hours. Gutierrez performed the conditions of said contract binding tupon him. The market house was erected and the lprocedure regarding sales entered upon, and Gutierrez began and continued to receive the rents and charges specified in the contract, and to nmke monthly payients to the municipality. On the 3d day of April, 1899, an order was issued by Maj. S. B. Sttanberr, a military officer of the United States in command at Sancti Spiritus, suspending the contract above referred to. On the 23d of June, 1899, the general in colmmand of the department of Matanzas rescinded this order. and directed the municipal authorities at Sancti Spilitus to restore Mr. Gutierrez to the enjoymellt of the rights and privileges exercised under said contract before the order of suspension was issued. Mr. Gutierrez is now in possession of the market house, but shows to this department that lie does not derive a revenue therefrom, or from the privileges conferred upon hilll )b said contract. His inability to derive such revenue results from the alleged fact that the mlunicipal authorities of Sancti Spi'itus refuse to carry out the terms of said contract, and require the venders in market products to confine their business to the mlarket house or to pay Mr. Gutierrez for the privilege of selling their wares in said market house or elsewhere. Under these conditions 1Mr. Gutierrez advances a claim for damages as follo-s: 1. Injury occasioned by the order of the military authorities of the United States suspending said contract. 2. Injury occasioned by the refusal of the muniicipal authorities of Sancti Spiritus to comply with the terms of said contract. Mr. Gutierrez now seeks to effect a settlement of all claims arising in this matter by surrendering said contract and conveying said market house to the municipality, and also to release the municipality from the debt due for lighting the city, and in consideration thereof he is to receive the suni of $62,277.12. This total is arrived at as follows: Debt due for lighting city for the years between 1878 and 1881, inclusive, as specified in the contract..-..................................... $15, 582. 35 Interest at 6 per cent for nineteen and one-half years.................. 18, 231. 33 Actual cost of the construction of the market house —......-.-......... 22,135. 33 Interest one year.................................................... 1,328. 11 Money expended in efforts to obtain rescission of military orders and execution of his contract........................................... 5,000.00 Total......................................................... 62, 277.12 536 If for any reason the proposed settlement can not be effected, Mr. Gutierrez insists that the military authorities of the United States in charge of the government of civil affairs in Cuba shall issue and enforce orders to the municipal authorities of Sancti Spiritus sufficiently drastic to secure him the enjoyment of the benefits claimed under the contract. The Spanish minister at this capital sustains the claims made by Gutierrez, who is a citizen of Spain. (See Doc. No. 18.) This matter has been referred to Major-General Wood, military governor of Cuba, and his determination was adverse to the claims made by Gutierrez. (See Doc. No. 13.) 1Mr. Gutierrez now applies to the Secretary of War for final deternination of the matter. THE ORDER OF SUSPENSION. Attention is directed to the fact that the alleged invasion of Gutierrez's rights by the military forces of the United States by the order of Major Stanberry suspending the contract has been corrected by the action rescinding said order. If the order of suspension worked an injury of such kind and character as to create a liability on the part of the United States, such liability arises on unliquidated damages, and the claimant must look to Congress for relief. This department is not permitted to settle, adjudge, or pay such claims. THE REFUSAL OF THE MUNICIPAL AUTHORITIES TO RENI)ER THE ASSISTANCE NECESSARY TO ENABLE GUTIERREZ TO 1)ERIVE THE BENEFITS CLAIMED UNI)ER THE CONTRACT. From the opinion of the Attorney-General as to the construction of sewers and pavements in Habana (Dady & Co.), delivered to the Secretary of War July 10, 1899, the following is quoted: No one has a right to insist upon the specific performance of a contract for the improvements of streets in a municipality. A city may suspend or entirely abandon a project, although covered by a valid contract, subject only to the right of the contractor, if damaged, to recover just compensation. Under the rule so announced it would appear that the municipality of Sancti Spiritus had the legal right to refuse to comply with this contract, and that Gutierrez was without the legal right to insist upon the specific performance of said contract or to require the United States to compel the municipality to comply with the terl.ms of said contract. It appears from the papers that the municipal authorities l)ase their refusal to assist in carrying out this contract on the grounds that the contract is void because it creates a monopoly and operates as a restriction of trade, and therefore violates public policy. This view 537 of the contract is sustained by Major-General Wood and his cabinet. Mr. Gutierrez objects to the exercise of such power of determination by the military authorities of the United States in Cuba as being in excess of their jurisdiction. From the argument of his counsel (Document No. 21) the following is quoted: It is respectfully submitted that the contract between Mr. Gutierrez and the municipality of Sancti Spiritus being valid under the laws of Spain and Cuba, it is ii-t within the lawful power of the nilitary authorities of the United States to set that contract aside or to interfere with and prevent its due execution. The assnmpltion and exercise on the part of the military authorities of the United States in Cuba of the power to pass upon, adjudicate, andl ractically annul Mr. (iutierrez's contract are plainly in violation of the duty specifically imposed upon the United States by the treaty of peace. * * * The Governmlent of Spain would clearly have the right to ask and expect the United States to in(demnify its subjects for such a gross and unjustifiable usurpation of judicial authority by a military officer of the I'nited States. (See p. 3, Doc. No. 21.) Without admitting that, the foregoing correctly states the limitations of the powers of the military authorities of the United States in Cuba, it suggests the inquiry as to whether said authorities would havle any more right to judicially determine the claims made on 1ehalf of the municipality and render a judgment adverse to the municipality and in favor of Mr. Gutierrez than it would have to judicially (letermine the matter adversely to the clainl advanced by Gutierrez. In other words, can this department act judicially and promote the interests of Mr. Gutierrez if it can not act judicially to his detriment? But I do not understand that the military authorities of the United States in Cuba have exercised judicial powers in this matter. They have rescinded the order of suspension and placed the parties i, s'tatt quo. They recognize the right of the municipality to refuse compliance with the terms of the contract by subjecting' itself to liability for damages, and relegate the question of such liability to the courts. (See Does. 13 and 15.) TIlE ()ORK)E CLOSING TlHE COURTS OF CUBIA TO SUITS A(GAINST MI UNICIPALITIEs. At present Mr. Gutierrez is prevented frolm bringing suit to test the liability of the municipality to hinl by the following order: HIEADI)tARTEIS I)IVISION OF CUBA, JIab(t(,((, Ma-rcht 21, 1899. On the recommendation of the Secretary of State and Government the military governor of Cuba directs the publication of the following order: 1. The prosecution of all claims against municipalities or provincial deputations will be suspended until the method of their adjustment shall be determined after the reorganization of said corporations. 2. Judges will not take cognizance of suits involving claims against provincial deputations or mnunicipalities for liabilities incurred prior to December 31, 1898, and suits already instituted to establish such claims will be suspended. ADNA R. CHAFFEE, M.lIjor- (Geral of VIoluntr:ers, Chie f of SY't 538 Presumably, the reorganization referred to in the foregoing order is that to be accomplished by the election to be held June 16, 1900, when the members of the aynttamiento will be actual representatives of the people. In so far as this matter presents a judicial aspect, it would seem that the only relief which the military authorities of the United States in Cuba could afford would be to suspend the operation of the order above quoted in this special instance. Whether such suspension shall be made or IMr. Gutierrez required to postpone bringing a suit until the order is revoked is an administrative question -to be determined by the Secretary of War, and does not require discussion by the writer. But the attention of the Secretary of War is directed to the fact that the military government in charge of civil affairs in Cuba is a substitute for the sovereignty which prevailed in the island prior to the establishment of military government by the United States therein, and, as such, is a part of the government of the several municipalities of the island and exercises general supervision and control thereover. It follows that such government may properly prevent the municipal authorities from subjecting the municipality to liability for damages. Therefore the discussion is extended to include this branch of the case that the Secretary of War may be advisecd as to the situation in regard thereto. There is a question as to whether the rights secured by the arrangement with the municipality constituted a franchise conferring vested rights, or t simple contract under which the rights were inchoate and dependent upon the continued action of the municipal authorities in imposing restraints upon others desirous of selling market products whereby Gutierrez was able to secure financial benefits. The provisions of the agreement upon which Gutierrez relied for his financial advantage were those whereby the municipal authorities agreed to make it unlawful to sell market products at any point in the city except the market house (sec. 7, contract, Doc. 4), and the provisions to require street venders of fish and other market products to provide themselves with and carry a certificate from Gutierrez that they had paid him a specified sum for the privilege of plying their avocation (sec. 9, Doc. 4); also to oblige the police to render Mr. Gutierrez such assistance as he may need to protect his interests in the streets (sec. 9, Doc. 4). The complaint now made by Gutierrez is based on the alleged failure of the municipal authorities to comply with these requirements of the contract. It will be seen that the privileges were conferred by an exercise of the police power of the government. An individual can not secure a vested right to control the exercise of the police power of the State any more than he could secure a vested right to control the operation of martial law. It is a power of which a State can not divest itself. 539 Undoubtedly the contract involved attempts to secure exclusive rights to Gutierrez, and to that extent creates a monopoly. As to whether or not La m1onopoly crea'ted in Cuba under Spanish dominion is now void, the attention of the Secretary of War is directed to the several opinions rendered by the Attorney-General on the order of Gen. Brooke preventing landing of Commercial Cable Company's cable in Cuba, delivered to the Secretary of War during the year 1899. Fromi the opinion delivered June 15, 1899,3 the following is quoted: (22 0p. 516.) The Ilcre fact that the Western Unlion Telegraph Company is enjoying, under a grant of exclusive right, what amounts to a mnopoly is no reason of itself why.it shoull lbe deprived of its concession. It is easy to say that monopolies are odious, but there are concessi(ois Nwhich anmount to monopolies which are lawful and can not be disturlbedl except by a violation of public faith. -;* -X- * %,-X- *,, Conlce-sions of this kind, which carry with themn exclusive rights for a period of years, ccmstitute property of which the concessionary can no more be deprived arl)itrarilv and without lawful reason than it can be deprived of its persolal tangil)le assets. Inm a case in tlhe Supreme Court of the United States (1 Wall., 332) Mr. Justice Field said: "The United States have desired to act as a great nation, not seeking in extending their authority over the ceded country to enforce forfeitures, but to afford protection and security to all just rights which could have been claimed from the govermnent they,sullrsleed." If, therefore, the Western Union Telegraph Comllpany has an exclusive grant applicable to Cuba for cable rights, which grant has not expired, it would l)e violative of all principles of justice to destroy its exclusive right by granting competing privileges to another company. Whether or not said contract is void because of being in restraint of trade is a question which must be determined by existing local conditions. If the trade in market products in the island has heretofore been conducted pursuant to the general plan embraced in the contract and the purpose and result of such contract was to promote said trade according to an established custom and usage, then the contract would probably not be considered as restrictive, since it does not wholly prohibit the trade, but seeks to regulate it. I incline to the opinion that the provisions of said contract to which Mr. Gutierrez now appeals may properly be considered as having been void fronm their inception, for the reason that the municipal council which adopted them undertook thereby to restrict subsequent councils and other municipal authorities in the exercise of the police power belonging to the municipality; or, as stated in another forum, the municipality is at liberty to exercise and control its police power at all times without regard to the action of former councils in regard thereto. And if it sees fit at this time to exercise such power in a manner different from that contemplated in the contract, it is at liberty to do so. The holding of this contract void, whether on the grounds of being a monopoly, or in restraint of trade, or as an unwarranted restriction 540 on the police power, is to be determined very largely by local conditions, as to which this Department is not informed, but in regard to which the military authorities of the United States in Cuba are informed. The military governor having passed upon the question so raised, it must be presumed that in making such determination he considered said local conditions, andl presumably such determination is correct. THE PROPOSAL TO CONVEY THE MARKET HIOUSE NOW OWNED) BY (GUTIERREZ TO THE MUNICIPALITY. It is now proposed by Mr. Gutierrez to bring the entire controversy to a final conclusion by conveying the market house erected by him under said contract to the municipality, free and clear of incumbrances, canceling the contract and waiving all claim for damages thereunder and releasing the city from the debt owed him for lighting. This proposition is to be considered as independent of the contract and standing on its own merits. The questions involved are(1) Does the municipality want the building? (2) Are the terms just, reasonable, and satisfactory' (3) Does the condition of the public fundis and revenues of the unillicipality warrant the expenditure for such purpose? In Cuba, as in the United States, market houses are considered public improvements, for the construction of which public funds may be properly used. Whether or not the municipality of Sancti Spiritus is to be permitted to use the public funds at its disposal to secure this market house is an administrative question to be answered by the Secretary of War, and is without the purview of this report. The condition upon which Gutierrez proposes to convey the mlarklet house to the city is the payment to him of $62,277.12. This total embraces the following items: For lighting the city from 1878 to 1881, inclusive -.... —.-............ $15, 582. 35 Interest at 6 per cent for nineteen and one-half years.. —........... 18, 231. 33 Actual cost of construction of market house-. --- —------—.-.-....... 22, 135. 33 Interest on above amount for one year -......................... 1, 328. 11 Expenses in obtaining rescission of order of suspension -. —. ---......n, 000. 00 Total................................... (,g 277. 12 The attention of the Secretary of War is directed to the fact that the total of the liability of the city for light furnished between 1878 and 1881 is stated in the contract involved herein as being $15,582.35. The interest charge of $18,231.33 now presented by Mr. Gutierrez should receive further investigation. Mr. Gutierrez also charges interest for one year on the money expended in the construction of the market house, fixing the sum at $1,328.11. It appears froml the papers on file herein that Gutierrez received revenues pursuanllt to the conditions of said contract from the 29th day of Novembler, 541 18598, the date the mnarket house was comlpleted and open for l)usiness, until the 3d day of April, 1S9'9, when his contract was suspended. It would seem proper to require him. to account to the municipality for the amnount so received before allowing him interest on the amount invested. It does not seem proper to require tle municipality of Sancti Spiritus to indemnify him for the $5,0()0 which he claimls to have spent in the effort to obtain a rescission of the mlilitary order suspending the execution of his contract. This order was ll'Ide 1)vy a military officer of the United States, and he should look to tlhat (overnllent for the dalnagyes occasioned thereby. The writer is not advised as to the condition of the public funds cand revenues of the municipality of Sancti Spiritus, and therefore call not furnish information in regard thereto. If the Secretary of War shall be of the opinion that the proposal to convey the market house to the municipality-, and thereby terminate the controversy, merits consideration and investigation, it is suggestetl that it would be proper to hold said proposal in labeyance until a lmunmicipal council is elected at the forthcoming election, whe(lreupon the llatter could be referred to the new council and the sul1ject tliken up anlIl investigated by them, the action of the Illlnicipallity to be sutbject to tle approval of the lmilitary governllent. The Secretary of Warl was of opiiion that the mllilitar:autliolities of the United States in Cuba had done all that was incumbent up-)On theln in this matter, and that such nlattetrs as are conltinuled in controversy should )e detelrmlined )by the courts of Culbat if the plarties to the controversy could 1not reach an a(greement. REPORT ON THE RIGHT OF THE MUNICIPALITY OF HABANA TO EXERCISE OVER PROPERTY OWNED BY SAID CITY THE RIGHTS WHICH BY LAW BELONG TO THE PEACEFUL POSSESSION OF PROPERTY. [L-lt)1Iitted ApIril 16, 1901. Case No. 3814. Division of Insular Affairs, War Drp)trtment.] Si: I have the honlor to acknowledge and conlply with yotur request for:a replot on a lmatter arising as follows: The lmunicilpal authorities of IIabamia, Cuba, seek to enter into an agreemlent with one Tomas Mazzantini v Equia, as president of the association known as " Fronton J.ai Allai," which will peirmit said association to occupy for a period of ten years a certain piece or parcel of groundl owned by the c(ity of Habana, and situate in the block of said munic ip iality- comprised between the streets named Concordia, Lucena, Virtudes, and Marques Gonzales. The contemplated agreement provides that said Mazzantini, at his own expense, shall erect a building 542 on said ground to be used as a " Fronton," or hand-ball court, wherein the public are to be permitted to play hand ball upon payment of a fee. As compensation for such use and occupation of said land the agreement provides that, at the expiration of said ten years' term, the building so constructed becomes the property of the city of Habana. As originally drawn, the agreement bound the municipality for at period of ten years to abstain from granting a like privilege of constructing a "Fronton" to any other individual or association. This provision appears to have been eliminated from the agreement. but is understood as being included in the request for a report and will therefore be considered. It appears that this agreement was first authorized by the miunicipal council of Habana in April, 1898. This action was ratified and affirled on March 15, 1900. The contract so authorized was reduced to writing and signed April 27, 1900, and was thereafter presented to the military governor of Cuba for his approval, in compliance witl the provisions of paragraph 3, article 81 of the municipal law. Thereupon the question aroseDoes said agreement violate the provisions of the legislation known as the "Foraker amendment " The military governor of Cuba refers this inquiry to the Secretary of War, and in his letter of reference sets forth the following: The municipal council, duly elected by the people, enters into a business arrangement which it deems to be to the advantage of the municipality, and which} is to the advantage of the municipality, as it obtains at the end of ten years a building worth about $8,000 * * * The whole transaction has been carried on in good faith and I can not t)elieve that it was the intention of the Foraker law to prohibit legitimate transactions of this sort. Under the existing Spanish law the approval of the Governor-General is required, but it is technical. If the Foraker law is to be interpreted as rigidly as within indicated, all business involving municipal as well as all other insular consent is practically at an end. The attention of the Secretary is called to the fact that a copy of said proposed agreement is not included in the papers submitted. and therefore its provisions can not be stated with definiteness. From the papers submitted it appears that said agreement provides for two separate and distinct matters, although both are involved in one tiansaction. These matters are1. The use and occupation of certain property owned by the municipality. 2. The obligation of the municipality to abstain for ten years from granting similar privileges to others. The provisions of said agreement relating to the disposition of the property constitute a lease for a period of ten years of property belonging to the city upon terms satisfactory to the parties whose rights are involved. To lease real estate is an ordinary right of a 543 proprietor. In regard to rights of this character in Cuba, the treaty of peace provides as follows. (Art. VIII): * * * the relinquishment * * * can not in any respect impair the * * * rights which by law belong to the peaceful possession of proI:erty of all kinds of provinces, m1 Cil)cpalities, public or private establishments, ecclesiastical or civic bo(-lies, or any other association having legal capacity to acquire anl possess property in the aforesaid territories. In addition to stipulating that the "rights which belong to the peaceful possession of property" shall not be impaired, the treaty prescri)es a rule of conduct for the United States during the period of occupation. This rule is set forth in Article I as follows: And as the island (Cuba) is, upon its evacuation by Spain, to ble occupllied by the United States, the UITllted States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the p)rotection of life and pro'perty. Since the United States voluntarily consented to be bound by them, it becomes necessary to ascertain what obligations relating to the protection of property and property rights are imposed by international law upon a military force maintaining military occupation of territory. The governmental forces of the United States (military and civil) now in Cuba are engaged in mainitaining an occtupation of the island and not a conteq.est. Occupattion is the temporary retention of territory, while conqptuest is the definite appropriation of it. Under the modern law of nations an occupying power is, as stated by Mr. Hall, "forbidden, as a general rule, to vary or to suspend laws affecting property and private personal relations." (Hall on International Law, 4th ed., chap. 4, par. 155.) Halleck states the law, as follows: As military occupation produces no effect (except in special cases and in the application of the severe right of war, by imposing Ililitary contributions and ccnfiscations) upon private property, it follows, as a necessary consequence, that the ownership of such property may be changed (luring such occupation, by one belligerent, of the territory of the other, precisely the same as though war (lid not exist. The right to alienate is incilent to the right of ownership, and, unless the ownership be restricted or qualified by the victor, the right of alienation continues the same during his military possessin of the territory in which it is situate as it was prior to his taking tile possession. A municipality or corporation has the same right as a natural l)erson to dispose of its property during a war, and all such transfers are, priima facie, as valid as if male in time of peace. If forbidden 1by the conqueror, tile prohibition is an exception to the general rule of public law and must be clearly establishe(l. (Halleck's Int. Law, 3(1 ed., chap. 33, par. 12, p. 448.) I do not think the legislation known as the Foraker amendment is to be construed as a prohibition of the right of a municipality to exercise the ordinary rights of ownership or contract. An interpretation thereof which would prevent the municipality of Habana from entering into the agreement under consideration would also preclude the city from entering into agreements for other municipal services, such as cleaning and lighting the streets, employing municipal officers and 544 agents, constructing public works, or making municipal improvements; for all such agreements create certain rights which are property. Indeed, such interpretation would prevent a private individual as well as a municipality from executing a grant of conveyance of his private property. I understand the Foraker amendment to be a voluntary renouncement by the United States of the fruits of conquest in Cuba. It restricted the United States to the recent rule of modern times regardin, military occupation, and precluded the exercise of the rights over pubiic and private property accorded by the ancient rule to a victor in w-ar who had completed a conquest. By the Teller resolution the United States disclaimed an intention to assume permanent sovereign rights in Cuba, and by the Foraker amendment the United States surrendered the rights of a conqueror and voluntarily limited its authority to that of a temporary occupant under the modern law of nations. As so interpreted the Foraker amendment is in harmony with the treaty of peace and international law; otherwise, it is at variance with )both. Historically, we know that one purpose of the Foraker amendment was to preserve the species of property therein referred to until such time as the rights therein and thereto could be exercised by governmental agencies selected by the inhabitants of Cuba. That purpose is accompllished as to municipal rights and property in Cub:a. To hold that said legislation prevents the municipalities of Cuba from exercising the common ordinary rights of ownership over propertv which belongs to them is to convert a bVneficent measure into an instlrument of oppression. The right which the city of HahanaL seeks to exercise is a personal right appertaining to property of which the city is the absolute owner, and therefore is not subject to the restrictions of said amendment.' II. The provisions of the agreement as originally contemplated, creating an obligation of the municipality to abstain for ten years from granting to others a similar privilege for a " Fronton " present another and a different question. It appears from the papers forwarded to the I)epartment that these provisions have been elimiinated. Ordinarily, the attention of the Secretary is not to be directed to such matters; but their consideration affords an opportunity to make a comparison which may elucidate the proposition actually involved. As already stated, a copy of said proposed agreement has not been forwarded to the War Department. From what appears in the papers submitted, it is difficult to determine whether the agreement was intended to bind the city (1) not to grant to others the privilege of 1 See (ift,,.. 374 et seq. 545 maintaining a "Fronton'" on city "property, or (2) not to grant to others the privilege of maintaining a "Fronton" within the limits of the municipality. In the first instance, the city would exercise a right appertaining to the ownership of property the title of which was vested and complete in the municipality. The rights resulting from such complete and vested title are personal and not subject to withdrawal. They are vc.stc;. In the second instance, the city would exercise (ertain authority appertaining to what is termed the police power of the State. The right of the city to exercise the police power of the State is not a vested right. Nor can it properly be said that. the city exercises this power by grant. The power at all times remains in the State and the city exercises it as the agent or representative of the State. The power is political and the authority to exercise it a privilege, dependent at all times upon the continued ability and inclination of the sovereign to permit the city to continue its exercise. It is probable that the Foraker amendment requires the major-general in command of the United States forces in Cuba to prevent the municipalities in the island from exercising the police power of the State in such way as to grant "property, franchises, or concessions;" lbut I can not believe that it was intended to require such military commander to prevent said municipalities from exercising over property owned by said cities "the rights which by law belong to the peaceful possession of propertv of all kinds." REPORT ON THE QUESTION OF INSERTING A CHARGE OF "CONSPIRACY" IN THE CRIMINAL COMPLAINTS AGAINST NEELY AND RATHBONE, AND THE INADVISABILITY OF JOINING BOTH DEFENDANTS IN ONE COMPLAINT, WHICH SHALL INCLUDE ALL THE CHARGES. [Submitted May 21, 1901. Case No. 2652, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge and comply with your request for a report on certain questions arising in the matter of the criminal proceedings in the courts of Cuba instituted against C. F. W. Neely and E. G. Rathbone, at one time officials in the department of posts, government of Cuba. Said questions are as follows: 1. Should said defendants be charged with conspiracy? 2. Should the criminal prosecutions against these persons be consolidated; that is to say, should they be joined in one information and charged with acting jointly in committing the alleged crimes? 3. Should each and all the acts complained of be included in one complaint or information? 1394-03 35 546 In order that a misunderstanding may not occur, I think it proper for me to state that when this report was requested the Secretary of War informed me that the conduct of said criminal proceedings devolved upon the local authorities in Cuba; that upon them rested the responsibilities arising therein, and they were to exercise a free hand in matters of procedure. Therefore this report, should it come to their notice, is not to be considered as a direction or instruction, but simply as presenting for consideration matters respecting which they are to exercise their own judgment and discretion. I. SHOULD SAID DEFENIDANTS BE CHARGED WITH CONS'IRACY 0 If a conspiracy was entered into by N ecly and Rathbonc, its purpose was to commit a felony. In the proceedings already instituted the contention of the Government is that a felony, or, more acurately, a number of felonies, were actually committed. If tle felony is an offense of a higher grade than conspiracy and the trial were had in the United States, a serious question would arise as to whether or ilot the lesser offense merged in the greater. Archbold's Criminal Practice and Pleadings (Pomeroy's notes, Sth ed., vol. 2, p. 1836) states the rule as follows: When a felony or misdemeanor is in fact colnmittedl, a conspiracy to commit such felony or misdemleanor can not be indicted andl punished! as a distinct offense. In the case of Commonwealth '. Kingsbury, Chief Justice Parsons, speaking for the supreme court of Massachusetts, says (5 Mass., 105, 107): The defendants are charged with conspiring to get possession of the chattels of Thomas Pons, then in his shop, to remove tlhem from his shop, and to conceal them from hil, und(er color of authority from the owner to sell them, and that they in fact carried their conspiracy into execution. The fraudulently obtaining possession of the chattels of Pons, carrying them away, and secreting them, is unquestionably a felony; and the attorney-general very properly admits it. But he has argued that the conspiracy was a complete offense by itself before it was carried into effect, and therefore is not merged in the felony. We have considered this case, and are of opinion that the misdemleanor is merged. Had the conspiracy not been effected, it might have been punished as a distinct offense, but a contrivance to commit a felony, and executing the contrivance, can not be punished as an o'-nse distinct from the felony, because the contrivance is a part of the felony, when conmnitted pursuant to it. The law is the same respecting misdemeanors. An intent to commit a misdemeanor, manifested by some overt act, is a misdemeanor; but if the intent be carried into execution, the offender can be punished but for one offense. I think the courts of the United States do not now accept the doctrine that conspiracy may merge in misdemeanor. Wright on Criminal Conspiracies says (p. 223): Another point to be observed is the doctrine of merger, by which is meant that where a conspiracy (which is a misdemeanor) consists of an agreement to commit a 547 felony and is actually executed, the mlisdemeanor merges in the felony; but where there is a conspiracy to commit a miisdemeanor only, there, even though the conspiracy be executed, there is no merger because the two crimes are of the salne rank. In People v. Richards et al., the supreme court of Michigan say (1 Mann., 217, 222): It was said in an early case in Massachusetts (Colmmonwealth r. Kingsbury, 5 Mass., 106), that where the misdemeanor or felony is actually executed, the conspiracy is imerged and can not le punished. But tlhe case was one of a conspiracy to commit a distinct felony. It is no dlobt the lwc that (f the f tcelony is ))ro'ed the con.spiracY miust (it once ierge. In People t,. Matlier (4 Wend., 205), Mr. Justice Martcy, speaking for the court, says: It is supposed that a conspiiracy to commit a crime is mlerged in tIle crime when the conspiracy is executed. Thris nay lbe so when tile crime is of a higher gradle than tile conspiracy, and tile olject of the conspliracy is fully accoim(ipl)lisllel; )lit a conspiracy is only a mlisdenmeanor, and -whenl its ob)ject is only to commlllit a Illisdemeanor, it can not ble mlerged. Where two crinimcs are of (qual grade, there can lbe no legal, technical merger. (Sec also, Lamllert '. People, 7 Cow. (N. Y.), 103; ('Cm. e. Drumi, 19 Pick. (Mass.), 479; Commi. r. (;ooledn, '2 Mtc. (SMass.), 193; State r'. Mlurra, 15 MTaine, 100; 1 Duvall, 4; 48 Ialaine, 218; State r. Noycs, 25 Micid.; I Hartmaml r. Com., 5 Barr, 60; Comi. r. D)elanv, 1 (;ranit, 224; Coin. r. Parr, 5 W. and S. (Pa.), A34. ) The doctrine declared by the foregoini authorities hlis not tbeen uiniversally accepted either in the United States nor England. (United States v. Rindskopf, ti Biss. (U. S.), 259: 1Reg. /'. Rowlands, 5 0Cox Crilu. Cas. (Eng'.), 497. note.) But tlhe courts which d(len the doctrine deprecate the 1)ractice at variance therewith. In the United States. Rindskopf (ante) the court said: In Reg. r. Boulton (:12 Cox Cr. Cas., 87) in court of (ltleell's )en(ch, before (Cief Justice (Cockbulrn, in 1871, altliouglt tile course of receivilng proof of tile commlission of the sul)stantial crime is not regarded as satisfactory,!et it is (leci(ded that si(cl:a course is legal, and in tlhat case, it being a (lharge of conspiracy to comimit a felonious crime, Iproof of the commissio of the crime itself was allowed. The chlief justice cited and relied u)pon the authority of the late Lor(l Cranwortlh in Reg. v. Rowlands (5 Cox Cr. Cas., 497, note). In that case the parties had beenl indicted, not for the offense they lia( comnmitted, but for a conspiracy to commit it, an(l the judge, after stating that it coidd ht Ire b*een )lore as(ti.fawctory if the lp(rties hit(d bee( itndicted for 'h/ot the! ha7d (doe atl (1not.tor cons.)ir(oc!( to (do it, state '" that the course pursued was no doubt legal, and, being legal," lie sdaid, "I shall not now step out of the path of my duty by speculatiing upon the policy that has ieen aldopted in this case. It wltold be mtch(' more sa(tisfactory/ to my min(dl if parties had bei'o iditet(l toe th1(t w'hicht they hare (diectly done', ac l not for h(t'ig ji)reciottsly consI)ired to do so miethii g, the h1(ving (lone iwhich is prooff o the ('osjlpir(tc. 1 eIt ir is satisf(ctory, tolf(ltol Ih doubtedly it is legal." I have quoted this language as expressive of miy first view of the question when raised during the trial, and I can say now, as I said then, that the better way, in my jitdglment, co01ld hare been to hare( indicted (all parties here for the )(prtictlar off7ense conmmnitted by each, but under the law it seems I have not the right to say they must be so prosecuted. The course pursued in tlis matter by the government attorney, in the language of those cases, is "undoubtedly legal," and I can, therefore, only consider the case as it is presented on this indictment. 548 Being so admonished, there seems little question as to the proper course to be pursued in cases of this character in the United States. I think the correct rule in the United States is as follows: The offense of conspiring to commit a felony merges in the offense of doing the felonious act in those States of the Union where the act itself is an offense of higher degree than the ((greement to commit the act, p)rovided the offense of conspiring is complete when the agreement is entered into; in States where the offense of conspiracy is not complete until the agreement is entered into and an attempt is made pursuant thereto, the act whereby the purpose of the agreement is accomplished may be considered as a part of the original offense and the offending parties punished either for the conspiracy or the felony, possibly for both. Wright on Criminal Conspiracies says (p. 93): In some of the States the crime has been made the subject of statutory definition and1 restriction, in others it rests solely upon the common law as found in the English reports, while by the Revised Statutes of the United States there must be both the corrupt agreement or combination an(d an overt act d(one in pursuance thereof to make the offense a punishable one. The Penal Code of Spain continues to be in force in Cuba, as does also the Spanish Code of Criminal Procedure. It is therefore important to consider if said question of merger might arise under said laws. An examination of the penal code in force in Cuba induces the belief that such question would arise and would be equally serious, if not more so, than in the United States. That code clearly distinguishes between an agreenent or con2spiracy to commit a criminal act and the act itself, and in each instance which has come under my observation that code deals with the conspiracy as an offense of lesser grade than the act itself is declared to be. For example, articles 134, 135, and 136 of said code define the crime of treason and fix the penalty of 'cadenape petua to death." The offense of conspiring to commit said treasonable acts is provided against as follows: ART. 137. Conspiracy to commit any of the crimes mentioned in the three preceding articles shall be punished with the penalty of presidio )marlor, and the proposition to commit the said crimes with that of presidio correeciowrl. The provisions of said code relating to the crimes of lese majeste furnish another example. They are as follows: ART. 155. Upon any person who shall kill the King there shall be imposed the penalty of reclusi(oI perpetua to death. ART. 156. If the crime referred to in the following article be frustrated or attempted, it shall be punished with the penalty of reclns;in temporal in its maximum degree to death. The conspiracy to execute with that of reclusion temporal. And the proposition with that of prisiin mayor. *X *X * t* 549 ART. 161. He who shall kill the immediate successor to the Crowvn or the Regentof the, Kingdom shall be punished with thle lpeualty of recluisi'n tenj)oral inl its mt-aximium degree to dleath. if thle crime be frustrated or attenilted, with the lpenalty of reclusion teIm))orul to death. The conspiracy with that of prisiun mu//eor inl its medium and ml-axirinum (legrees. An(I the lproposition with that of p~risio'n correcciouui in its maximum (legree to prisio6n mwu/or in its minimumi degree. Articles 23-7 to 243 define tho crimec of rebellion and prescriibe the penalty therefor. For many such acts the penalty is -"cadc.na j)eiy)ctaa to death."1 Article 244 deals with aftgreements to commit rebellion as follows: ART. 244. Conspiracy to commit the crime of rebellion shall be punished with tile penalty of jwrisiOfl corrIcc(IouiI in its mnedium andi maximum (legree. The lproposal to do so shall be punished with that of reclud40n tempjoral in its, minimumi and medium (legree. From the provisions of said code relating to sedition the following is quoted: ART. 246. Those who by inciting time se(Iitious an(1 making them resolute shall have p~romotedl and suplported sedition, and its lpriilcipal leaders shall be punished with thle penalty of reclusiu'n tempqoral, should they be included in anly of the cases specified in the first p)aragrajph of No. 2 of article 172, and with that of p~risinm imugor if they are included in ione of these. ART. 247. Mere particilpants in sedlitioll shall be punishe(I with the p)enalty of p)rision correcc~ionial ill its medlilm and maximum degrees in the cases specified in thle first p)aragraph of -No. 2 of sai(I article 1 72, an(I with that of I)risiuJn (101rrecciouul ill its minimum and mnedium. degrees if not included therein. AmrT. 249. A conspiracy to commit the crime of sedition shall be punishedl with thle penalty of cu'resto miayor to ])risio'n correcciwowrl iii its minimumi degree. That the lesser offense mnerges in the greater is such,an universal rule11 of crimlinal jurisprudence(, that I doubt not it prevails in the jurisdiction of Spain. I have not failed to observe that conspiracy to comimnit acts conistitlltinlO tie oilese-majeste' relellion, and sedition are sublject to penalties similar in character to those prescribed for felonlies, although different in extent, and this might be held to prevent mierger in cases of conspiracy to conimit those particular acts. Cuba continues to be under the civil law, and the common-law rules respecting conspiracy aie not in force therein. Many agreements which might he considered conspiracies uinder the common law ai-e not amenable to the civil law. Article 4 of the Penal Code hi force in Cuba lprovides as' follows: ART. 4. A conspiracy andl proposition to commit a crime are punishable onl/l in the cases in?which the lawvsp.ecially p)enalizes themt. There is a conspiracy when two or more persons act together for the commission of a crime andl decide to commit it. There is a proposition when the person who has decided to commit a crime proposes its execution to one or more persons. 550 It becomes important to ascertain if a conspiracy to commit the crime of which Neely or Rathbone stand accused is one "which the law specially penalizes." if 1 understand aright, Neely and Rathhone are charged with violating the provisions of one or all of articles 401, 402, 403, and 404 of the Penal Code in force in Cuba, and also section 55 of the Postal Code of Cuba. Said articles of the Penal Code are as followsd;: ART. 401. The public official who by reason of his duties has in his charge pulblic funds or property and wn-ho should take or consent that others should takc the samlle 8-hall he punished: 1. With the Ipenalty of arresto mayor in its inaxinun ul egree to 1)residio correCcioald in its m-iinimum dcgree if the amount taken should iiot exceed 125 pesctas. 2. With that of presidio correccimal in its miedium-i and maximum degrees if it shouldl have exceeded 125 ancl did not exceed 6,250 pesetas. 3. With that of presidio vmyor if it exceeded 6,250 and not exceed 125,000 pesetas. 4. With that of ca(lena temporal if it exceeded 125,000 pesetas. In any case with that of temporary special disqualification in its maximum (legree to perpetual disqualification. ARTr. 402. The public oflicial who, through iniexcuisabtle ablandlonmeniit or negligence, should enable the lpeculationl of )uiblic funds or lprolperty, referred to in Nos. 2, 3, an(1 4 of the foregoing article, by another person shall iicur the penalty of a fine equivalenit to the value of the money or property misappropriated. ART. 403. The official who, to the detrimient or hindraiice of the public service, shall apply to his owvn or to foreign purposes the mnoney or prolerty placed under his chargre shall be punished with the penalties of temporary special disqualification alld a line of from 20 to 50 per cent of the ainount divertedl. If restitution l)e not mnade the penialties prescribed in article 401 shall b~e imposedl on himt. If stuch unlawvful use of the fundi(s were without detriment to or hindrance of the pulblic service, he shall incur the 1)enalties of susleiision and a fine of from 5 to 25 per cent of the amount dlivertedl. ARlT. 404. The public official wNho shall give to the fundls or property that lie adlmin-i isters a pulullic app)lication( different. from that to which they were destinedl shall inctur the Ienalties of temltoraryv dIisqualificationi antl a line of from 5 to 50 per cent of the amount diverte(l, if (detrimnent. to or hindranc(e of the l)i)blic service to which. thiey wvere assigne(1 should result therefrom, an(l otherwise thait of suspension. Section.55 of the Postal Code is as followvs: Whoever, lehing a postmaster, lassistant postmnaster, (ashier, or' other person employicd in or in any wva- connected with the business or olperatiios of any branlch of the service of thie department of posts, shall convert to his ownvi use aiin money1, postagye stamnl), stampedl Ipaper, or other property of the department. of posts, or in the custody of, or iin use by, said (ldeartmeint, or postal, mnoiev-or(ler, or other fuiinds4 coIm11ing into his hands- in anm manner wi-hatever, or any money or prol)erty' whlichi may have come into his possession or uender his control in the executionm of suchl office, employmeiint, or service, or under color or lainin of authority as suchi officer, employee, or agent, NNvhiether the same shall be thle moiney or p)ropcrty of the ilepartment of losts or in the (ustody of or in use by sail (ldepartment or of some other person or party, or shall fail safely to keep aniy such money, stamips, stamnped lpaper, postal, money-order, or othfer funds or other property, whether the same is the prop 551 erty of the department of posts or in the custoldy of or in use by said department, or the property of some other person or party, without loaning, using, depositing in banks, except as authorized by the regulations of the department of posts, or exchanging for funds or property other than such as are especially allowed by the regulations of the department of posts, or shall fail to remit to or deposit at a designated depository, or turn over to the proper officer or officers, agent, or agents any such Imoney, stamps, stamped paper, postal, mloney-order, or other funds, or other property, whether the same is the property of the department of posts or in the custody of or in use by said department, or the property of some other person or party, when required so to lo by law or the regulations of the department of posts, or upon demand or order of the director-general of posts, either directly or through a duly authorized and accredited officer or agent of the department of posts, or shall advise or participate in any of the offenses defined in this section, shall for every such offense be punished by imprisonment for not less than six months nor more than ten years, or by a fine in a sum equal to the amount embezzled, or by both such fine and imprisonment; and any failure to produce any money, postage stamlps, stamped paper, postal, money-order, or other funds, or other property whether the property of the department of posts or in the custody of or in use by said department, or the property of any other person or party, when required so to do as hereinbefore provided, shall be taken to be prima facie evidence of such offense. But nothing shall be construed to prohibit any postmaster from depositing, under the direction of the director-general of posts, in a bank designated by the director-general of posts for that purpose, or in any other place, p)rovided the director-general of posts shall so specifically authorize, to his own credit as postmaster, any funds in his charge, nor prevent his negotiating drafts or other evidences of debt through such banks or otherwise, when instructed or required to do so by the director-general of posts, for the purpose of remitting surplus funds from one post-office to another or to a designated depository. I am unable to find provisions of law either in the Penal Code or Postal Code which specially penalizes an agreement or conspiracy to commit tlhe acts thus declared to be criminal; nor do I find a general provision such as is made Tby section 544:0, Revised Statutes of the United States, as follows: SEc. 5440. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any mlanner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less tlan $1,000 and not more than $10,000, and to imprisonment iiot nltore than two years. Arturo Hevia, deputy plublic plrosecutor in Habana, who appears to have charge of the prosecution, lmakes a report in regard to the contemnplated repot. ith ef e to seport Major Dudley, judgeadvocate, Department of Cuba, writes (MayI S, 1901): lie agrees that it is not wise to mlake the charge on "conspiracy" (alone, lut to mlake.pecific charges against each of the accused, and that is his intention. My understanding of said report is that the deputy prosecutor intends to file a complaint wherein the offense charged will be a willful doing of an act and not a willful participation in an ar('ceme.nt. That is to say, the complaint will not charge an offense of which conspiracy is the gravamen. 552 Apparently it is intended that said complaint shall set forth that an agreement to commit said acts was entered into and said acts committed pursuant thereto, but said facts are to be averred (1) as matters in (ygracatiofn and (2) as the means or instruments by which the criminal act was done and performed, the offense charged being one or all of the several acts penalized by the provisions of section 55 of the postal code and article 401 of the penal code. I further understand that said complaint will charge each offense in the alternative; i. e., (1) said act was done and performed by the accused; (2) said act was done and performed by the accused pursuant to an agreement so to do. In support of this practice of criminal pleading Mr. Hevia refers to certain articles of the Spanish Code of Criminal Procedure, which, as translated in this division, are as follows: ART. 649. When the oral trial is ordered the case shall be communicated to the fiscal (prosecutor) or to the private accuser, if the crime can not be prosecuted ex officio, in order that within the period of five (lays they may classify the facts in writing. After this classification is made, all the proceedings in the case shall )e public. ART. 650. The classification shall be limited to deciding in precise and numbered conclusions: 1. The punishable facts resulting from the summary investigation. 2. The legal character of said facts and the specific designation of the crime constituted thereby. 3. The participation therein of the accused person or persons, as the case may be. 4. The facts resulting from the summary investigation which constitute extenuating or aggravating circumstances or which may exempt from criminal liability. 5. The penalties which the accused person or persons, as. the case may be, hlave incurred by virtue of their respective participation in the crime. Tlhe private accuser, when there is one, and the prosecuting official, when they bring a civil action shall also state: 1. The amount of dalnages as estimate(d by them, caused by the crime or the designation of the thing, and the fact in virtue of which this liability was contracted. ART. 653. The parties shall have the power to submit upon each of the points which are to be the object of the classification, two or more conclusions in alternative form, so that if from the trial the first should not be proper, any of the others may be considered in the sentence. ART. 732. After the closing of the evidence the parties shall have the power to modify the conclusions set forth in the classification. In such case they shall submit in writing the new conclusions and deliver them to the presiding judge of the court. The conclusions may be prepared in alternative form, as provided for in article 653. The purpose of averring the existence of the agreement or conspiracy is to insure the competency of certain testimony which the Government intends to offer, and to show premeditation and deliberate contriving, extending over a period of many months, thereby increasing the degree of the offense. If the intentions of the public prosecutor are as above set forth, they appear to me as entirely proper. 553 II. ShoFlad t1Ie cmJl inal p)ros&eccttioms a(t/a( inst t/whe, cpleisol conso i(ated; that is to say, ts0eaid tAc (ICCu8se( be joined( ini olc i0/fom'liatiatlf an(d clarqc/e wit/ (actingy jointly in con iiitt;in tle alleyed cr'i)cws' I think this question should be answered in the negative, for the reason that it may be or made to appear that in some instances one or both of the accused acted independently of the other. This variance between the information and the proof would not be as serious in Spanish jurisdictions as in the United States. Crininal procedure under the civil law is adapted to the rule, Let no guilty man escape, while under the common law the rule is, Let no innocent man suffer. It follows that under the criminal procedure of the civil law the court is permitted to exercise great latitude iln matters of procedure, and may permit the complaint to be modified so as to conform to the facts shown to exist (Art. 732, Code Crim. Procedure), while in the United States such authority is not possessed by the judges of criminal courts in trials based on indictments (Ex parte Bain. 121 U. S., 1), for with us indictments are found and presented by grand juries, acting independently of the presiding magistrate. Under the civil law the question presented to the court in a c'riiinal prosecution is, Is the accused guilty of any act penalized by the l:aw Under the common law the question presented to the court is, Is the accused guilty of the particular offense whereof lie stands chargedl Hence the difference in the procedure. I am unable to definitely determine fromi the report of Mr. IIevia what his intentions are tas to this matter. This inability, however, is not to be attribulted to the report. Mr. IIevia writes with full knowledge of the criminal procedure and practice in Spanish jurisdictions, and I read in comparative ignorance thereof. While these prosecutions are to be conducted p)ursttant to the Spanish law in force in Cuba, it seems desirable that, so fai' as safely can be done, the procedure should harl'l nize with American ideas and established practices. Therefore it seems best, if possible, to have the complaint drawn in the first instance so as to avoid the necessity of changing it after the evidence is submitted, reserving, of course, the liberty to exercise the right to change if found desirable. III. Should each atd dall the acts comj)laine(l,f blen incltuled in one corml)iaint or infoi'rmation? 1 understand from the report of the fiscal, Arturo Ilevia, that it is his intention to include all of the acts or offenses in one complaint. If separate complaints are filed against each of the accused, all of the offenses of which the person named is considered guilty will be included in the complaint against him. 554 The code of criminal procedure in force in Cuba provides as follows: Ar'. 300. Every crime of which the judicial authority takes cognizance shall be the object of a summary investigation. The connected crimes shall nerertheless be included io a si)gle record. ART. 17. The following are considered as crimes connecte(l with each other: 1. Those simultaneously committed by two or more persons together whenever sai(l persons are or may be subject to different ordinary or special judges or courts by virtue of the nature of the crime. 2. Thos.e con mitted by t,',o or more persons i, dilrerent platces. or at different times should ther hare beene a previous agreement regarding the srate. 3. Those committed (s a memns to commit others or facilitate the e.ecution thereof. 4. Those conmmitted in order to secure immunity from other crimes. 5. The different crimes impted to (an accused at the beginning of the proceeding agailst him for any of them, sholdd there be, in the judglment of the court, a(t analogy or relation bebtween them, (and not lietre been so far included in the proceedings. In this connection attention is directed to the case of Pointer v. United States (151 U. S., 396, 4)03), wherein the Supreme Court of the United States held: The provision in Revised Statutes, section 1024, that "when there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several in(lictmnents, the whole may be joined in one indictment, in separate counts; and if two or more indictments are joined in such cases, the court may order them to be consolidated," leaves the court to determine whether, in a given case, a joinder of two or more offenses in one indictment is consistent with settled principles of criminal law, and also free to compel the prosecution to elect under which count it will proceed, when it appeals from the indictment or from the evidence that the prisoner max be et barrassed in his defense if that course be not pursued. Also, the case of MIcElroy r. United States (104 U. S., p. 76), wherein the court say (p. 80): It is clear that the statute does not authorize the consolidation of indictments in such a way that some of the defendants may be tried at the same time with other defendants charged withl a crime different from that for which all are tried. And even if the defendants are the samle in all the indictments consolidated, we (do not think the statute authorizes the joinder of distinct felonies, not plrovable by the same evidence and in no sense resulting from thle same series of acts. The question which arises in my mind relates to the expediency rather than the lqgrtlty of pursuing the course indicated. If all the offenses are included in one complaint and disposed of in one trial, the Government may be placed at a disadvantage for want of certain evidence which could be secured; or matters in defense may be presented which could 1)e overcome if opportunity were afforded. It not unfrequently happens, in the trial of criminal actions in the United States, that the defense finds cause for felicitation in the fact that the prosecution elects to "put all its eggs in one basket." and quite as frequently finds cause for well-merited apprehension when called upon to face a series of indictments and trials. If the law now in force in Cuba permits these offenses to be presented to the courts in several separate coin 555 plaints, and independent trials may b)e had thereon, it seems advisable to pursue that course. Howev-er, the determination of the several matters herein discussed is to be left, as:already stated, to the local authorities of the government of Cuba. The Secretary of War transmitted a copy of the foregoing report to the military governor of Cuba inclosed in the following' letter: MvAY 23, 1901. SIR: I herewith transmit the report of the law officer, Division of Insular Affairs, War Department, on certain questions arising in the Neely an(l Rathbole cases. This report was prepared for my personal use; but it presents Inatters whichl I consid(er of sufficient importance to require consideration by the officials having charge of these prosecutions, and therefore the report is forwarded to you. While this report is in harmonyl with. the views'entertained 1)y nle and heretofore communicate(l to you, I wish it understood that the determination of the questions discussed d(evolves upon the officials conducting the p)roceed(ings, upon -whom the responsibilities rest. -Very respectfully, ElIIIU ROOT, Secretary? of Tlar. Maj. Gen. LEONARD) WooD, U. S. V., AMilitary/ CGoernor of C(lbat. REPORT AS TO THE OWNERSHIP AND RIGHT TO DISPOSE OF VESSELS DISABLED AND SUNK IN THE COASTAL WATERS OF CUBA BY THE NAVAL FORCES OF THE UNITED STATES DURING THE SPANISH-AMERICAN WAR. [Submitted July 1S, 1901. Case No. 2797, I)ix'ision of Insular Affairs. XWr -)epartlllent.] STR: I have the honor to acknowledge receipt of yotur request for report on the question of ownership Incd right to dispose of certain vessels disabled and sunk in the coastal waters of Cuba ltv the.lm-al forces of the United States during tie Sl)atnish-Alnerican war. These wrecks are to ble considered from two points of view. 1. As pr()j)rt }lhaving ' t market -nalue. 2. As ob,,strf(tti,,ol to (wr,?iq;atfioa anld therefore r/,.lanc(.Y.. If said vessels are to ble dealt with as prloperty h:ltving a m'arketable value and disposed of by' exercise of the, rights of ownership, then the attention of the Secretary is directed to the following provisions of section 3755, Revised Statutes of the IUnited Staltes: The Secretary of the Treasury is authorized to mlake such contracts and provisions as lie ma-y deem for the interests of the Government, for tlle preservation, sale, or collection of any property, or the procee(Is tllereof, wh-lich mlay have been wrecked, al)andoned, or b)ecome derelict, being within tile jurisdiction of tile lUnited States, andl which ought to conme to thle United States * * * and( in such contracts to allow such colnlensation * * * as tile Secretary of the Treasury mllay deem just and reasonable. No costs or claim shall, however, become chargeable to the United States in so obtaining, preserving, collecting, receivilg, or imaking available l poperty * * * wlich shall not be paid from such mlloneys as shall 1)e realized and received froml the property so collected und(er specific agreement. 556 The Attorney-General in letter to the Secretary of the Navy, dated March 29, 1900, written with reference to the wreck of the Alfonso XII, one of the vessels now under consideration, says: These wrecks all appear to be lying on the shores and in the coast waters of Cuba, and as that island is now within the jurisdiction of the United States under the treaty with Spain and in international law, although temporarily so and by means of a military government, it is my opinion that section 3755 gives to the Secretary of the Treasury complete authority in the premises. * * * Section 3755 undoubtedly * * * extends to the property of private owners which lhas been wrecked, abandoned, or become direlict, and I do not suppose it woul(l be denied on any ground that the wrecks on the coast of Cuba are the property of the United States as the victors in the war with Spain and in the various engagements in which these vessels were sunk. In said letter the Attorney-General expresses the opinion that the "Navy Department has neither general nor special authority in law to recover and preserve these wrecks and appurtenances;" and also that the acts of June 14, 1880, and August 2, 1882, making it the duty of the Secretary of War to remove sunken vessels which obstruct the navigable waters of the United States and giving him a certain discretion respecting the sale and disposition of such sunken craft, do not apply to the coast waters of Cuba. By Department letter dated May 4, 1900, the military governor of Cuba was advised that the War Department purposed to act in accordance with the views of the Attorney-General, alnd a copy of his opinion was therewith transmitted. On MaIy, 1900, the military governor of Cuba returned said letter and re(quested a reconsideration of the subject. September 15, 1900, the military governor of Cuba addressed a commnniication to the War Department, in which the general subject is presented as follows: I have the honor to request a d(ecision on the following subject: There are a nulmber of old wrecks-Spanish war vessels-scattered along tlie coasts of Cuba whiclh have long since been abandoned and are rapidly rusting out. I believe that some of theni could be sold and the island government derive some )einefit from such action. I am constantly in receipt of applications in regard to the wrecking, removing, etc., of these derelicts, and respectfully request that authority be allowed to proceed with the work as may seemi to the best interest of the public service here. In order that the Secretary may be fully advised as to the situation in which this matter now stands, it is necessary to direct attention to the proceedings had in the case of the Alfon.o XYII, one of said wrecks. Application was made to the military government of Cuba for the purchase of this wreck. The application was forwarded to the War Department and referred to the Navy Department. The Secretary of the Navy requested the opinion of the Attorney-General and received the letter above referred to, and thereupon informed the War Department that the Navy Department did not have jurisdiction, and advised that the matter be referred to the Treasury Department. (Doc. 6, No. 1705.) 557 On May 9, 1900, the Secretary of the rr1easurlvyadvised the, Secretary of War as follows: Sin: I hav-e the honor to acknowledlge the receipt from i your Department of your indorseinent (dated the 4th iustaiit, upon a recommendation liy the captain of thle lport of Habana, relativ-e to the. steamship Alfooiso XlIT, reportedl to heave been wrecked at Mariel, andl have to state that this Department wtill (considler a Iproposition miade by the (company referred to by the, captain of the. port in the correspondlence, or other reputable company or compjaniies, for the recovery of the property. The proposition should 1)e so made as to (conform to the termns of the, law governing such cases, as set forth in the, Revised Statutes, and it. is suggestedl that the, paper be forwarded through the office of the, captain of the lport, with such remarks or comments indorsed thiereon as hie may choose to make. Respectfully L. J. GAGE, S(crehorq. On July 3, 1900 the Secretarv of War,addressed the'Secretary of the Treasury as follows: Sin: The military governmnent of Cuba desires to (lispose of the wreck of the llfoso XII, a S'panish vessel now lyin upn thle rocks off thle north coast of Cuba, at the entrance of the harbor of Mariel. It is nnderstood that the Navy Department has abandoned all intention of endeavoring to lireserve thle vessel. I desire to lbe informed wh-lether you propose, undler section 3755 of the Revised Statutes, to make any contract or provision for the preservation or sale of thme said vessel. If you (10 not propose to make such provision, the military government of Cuba will proceed to (lispose of the wreck, which has now remained as a serious ob~struction to navigation for two years, and which. shiould lbe remnove(1 by some one without. further (lelay. Very-resp)ectfully, E'Limu RooTr, 'A~crctar? /' Oj17Wo. In response the Secretary of the Trieasur-y, oni July (6. 1900, wrote as follows (lDoc. S. No. 1705): The D~epartment has been advised that she is of no value except as old iron, and that the wreck is now a (langerous-, obstruction to navigation. On the 9th of 'May, last the D~epart~ment aMvisedl you. that it would cons-ider a lprolposition by a reputable coinpany or companies for the, recovery of the p~rop)erty. Nothing further has beein heard of the matter-, either through your IDepartiment or otherwise. Undler the circumstances this Departmnent has no olbjection to action ini ac-cordlance with your suggestion, that. the military government, of Cuba lue allowedI to (lislpose of the wAreck, which, as you remark, has now remained as a serious olbstruction to navigation for two years and whiich should be removed 1y some one without further delay. Oni July.5), 1900, the military- governor of Cuba was advised as follows: Smm: Referring, to your letter of Mlay 9 last, asking that the wreck of the Spanish translport Alfoiiso XII be lplacedI at thle disp)osition of the island government, I aiml (lirected 1w the Secretary of War to advise you. that the Treasury Department hav-ing mnade no objection to such disposition, you are authorized to lproceedl to the removal of this (lerelict in the manner von (deemn proper. Very respectfully, CLARENCE R. EDWvARDS, Lietitenant- Cbloel Forty-sereitli Infaitry, U S. T', iMaj. (Gen. LEONARD Woo!), Ce fDrsol.Ililitar!I G~o?-reor of Cila, Ifahana, (0uba. 558 There the matter rested until April, 1901, when application was made to the State Department by A. Lotinga for the purchase of the wreck of the said Alfonso XIL and two other wrecks, as follows (Case No. 2797): 86 LEADENHALL STREET, London, E. C., April 16, 1901. The SECRETARY OF STATE, Sttte Department, Waslhington, D. C., l:. A. SIt: During the Spanish-American war the three steamers Alfonso X1I, Santo Domingo, and Antonio Lopez were run ashore on the coast of Cuba, and I understand that the wrecks remain on the rocks to this day. I have friends who would be prepared to purchase same as they lie for breaking-up purposes. I have been in correspondence with this matter both with the Transatlantic Company of Barcelona, formerly owners of the boats, and also with the underwriters,.rom whom I have received communication that both parties had abandoned the boats altogether. I should feel greatly obliged if you will let me know whether it might be the intention of your Government to dispose of the above-named wrecks, and if so, what steps would be necessary for me to take in the mattelr. Waiting the honor of your reply, I remain, sir, your obedient servant,;A. LOTINGA. The State Department sent copies of tis application to the War Department and to the Treasury Department. The Secretary of the Treasury addressed a letter to the Secretary of War, as follows (Doc. 2, No. 2797): TREASURY DEPARTMENTN OFFICE ()O TIlE SECRETARY, lWaslington, Mat! 6, 1901. The SECRETARY OF WAR. SIR: I have the lionor to transmit herewith a copy of a letter from Mr. Alfred Lotinga relative to certain wrecks of Spanish steamers on the coast of Cuba, and will thank you to obtain fromn the proper authorities of the government in Cuba a report upon tile mlatter. Respectfully, 1. J. GAGE, Secretaiy. The matter was referred to the military governor of Cuba,) who returned the papers with the following indorsement (4th Ind., No. 2797): The wrecks in question are the property of t1le island of Cuba. Arrangements for tlhheremoval of tle Ilfo)so XII have already Ieen effected, and it is recommended that the parties mentioned correspond direct with the island goverlnment relative to others. If their propositions are advantageous they w\ill be given inmled(iate and favorable consideration. I take the liblerty of directing the attention of the Secretary of War to the fact that in addition to the determination of this question of ownership by the Attorney-General, and concurrence in his views by the War, Navy, Treasury, and State departments, the principle involved has been adjudicated by the courts of the United States. The several captures of vessels effected by the naval forces of the United States during the war with Spain were taken into the prize courts, wherein decrees were entered that said vessels should be sold and the 559 proceeds disposed of as the laws of the United States provided. In none of these cases was it held that the vessels were the prize or property of the military government of Cuba or that said government was entitled to participate in the proceeds of the sale. The rights of the captors are the samle whether the prize sinks or continues to float, and I am unable to find authority for the proposition that prize of war, captured at sea, inures to the benefit of the military government of the territory off the coast of which the capture was effected. If, therefore, these wrecks are to be considered as property and dealt with for the sole purpose of enabling the proprietor to realize their p(rol)cety vaelue, it appears manifest that the proprietor is not the military government of Cuba. The attention of the Secretary is directed to the question as to the right or authority of the Government of the United States to exercise the powers of a proprietor over said vessels and to sell and convey them. The question involved is: Did the proprietary title to these vessels pass to the United States by the act of capture or destruction? In Brown r. United States (S Cranch, 110) Mr. Justice Story said (p. 148): Even as to captures actually made under such commissions no absolute title by confiscation vests in the captors until a sentence of condlelniation. * * * But until the title should be divested by soec overt act of the government and some judicial sentence, the property would unquestionably remain in the Britishl owners, and if ( pe(tce should i;terrene it would le, comlpletely beyoud the reach. of s80SctquLteit condlelmation. In Jecker et al. o. Montgomery (13 How., 49S) Mr. Chief Justice Taney, speaking for the court, said (p. 516): As a general rule it is the duty of the captor to bring it within tlle jurisdiction of a prize court of the nation to which he belongs, and to institute proceedings to have it condemned. This is required by the act of Congress in cases of capture by slhips of war of the United States, and this act merely enforces the p)erformance of a duty imposed upon the captor by the law of nations, which in all civilized countries secures to the captured a trial in a court of competent jurisdictionl before lie can finally be deprived of his property. But there are cases where, from existing circuimstances, the captor may be excused fromn the performance of this duty, and may sell or otherwise dispose of the property before condemnation. And where the commander of a national ship can not, without weakening inconveniently the force under his command, spare a sufficient priz(e crew to man the captured vessel, or whiere thile orders of his government prohibit himn from doing so, he may lawfully sell or otherwise dispose of the captured prop)erty in a foreign country, and mlay afterwards proceed to adjudication in a court of the United States. (4 Cr., 293; 7 Id., 423; 2 Gall., 368; 2 Wheat., App. 11, 16; 1 Kent's ComI., 359; 6 Rob., 138, 194, 229, 257.) But if no sufficient cause is shown to justify the sale, and the conduct of the captor has been unjust and oppressive, the court may refuse to adjudicate upon the validity of the capture, and award restitution and damages against the captor, although the seizure as prize was originally lawful, or made upon probable cause. And the same rule prevails where the sale was justifiable, and the captor has delayed, for an unreasonable time, to institute proceedings to condemn it. Upon a 560 libel filed by the captured, as for a marine trespass, the court will refuse to award a monition to proceed to adjudication on the question of prize or no prize, but will treat the captor as a wrongdoer from the beginning. ll The Nassau (4 Wall. 634), Mr. Justice Davis, speaking for the court, said (p. (140-641): It is the practice with civilized nations, when a vessel is captured at sea as a prize of war, to bring her into some convenient port of the governmlent of the captor for adjudication. The title is not transferred by the mere fact of capture, but it is the duty of the captor to send his prize home, in order that a judicial inquiry may be instituted to (eternine whether the capture was lawful, and if so, to settle all intervening claims of property. Until there is a sentence of condelmnation or restitution the capture is held by the government in trust for those who, )b the decree of the court, may have the ultimate right to it. In Lamar, executor, v. Browne et al. (92 U. S., 187), Mr. Chief Justice Waite, delivering the opinion of the court, said (p. 195): Property captured at sea can never be converted by the captor until it has been brought to legal adjudication; and it is his duty, with all practical)le dispatch, to bring his prize into somle convenient port for that purpose. The reason for the rule requiring judicial proceedings is that the sea is neutral, and therefore property thereon is not to be considered from its location to be the property of the enemy. The absence of this reason would lead me to the belief that, as to vessels which were avowedly the property of the nation at war or in the military service of said nation, the rule would not apply, and the title would pass upon the capture being completed, were it not for the provisions of section 4613, Revised Statutes of the United States, as follows: The provisions of this title (prize) shall apply to all captur(es made as a prize by authority of the United States, or adopted and ratified by the President of the United States. The prize laws of the United States were enacted pursuant to authority conferred by the Constitution upon Congress "To * * * make rules concerning captures on land and water." They provide, among other things, the following: 1. If the United States desires to retain a captured vessel in the Government service, it may do so, whereupon the property is surveyed, apl)praised, and inventoried and the proceedings reported to the court having jurisdiction for the protection of the rights of the claimant and captors. The Department to whose use the property is devoted is required to deposit the value thereof with an assistant treasurer of the United States, in whose hands it is subject to the order of the court. (Sec. 4624.) 2. If the United States does not desire to retain the captured vessel in the Government service, but wishes to sell it, the property itself is subjected to the jurisdiction of the court, and upon being adjudged lawful prize of war is sold under a decree of the court. (Sec. 4615.) 3. If the captured vessel or any part of the captured property is not in condition to be sent in for adjudication a survey shall be had thereon, and an appraisement made by persons as competent and impartial as can be obtained, and their reports shall be sent to the court in which such proceedings are to bqe had; and such p)operty, unless appropriated for the use of the Government, shall be sold by the authority 561 of the commanding officer present, and the proceeds deposited with assistant treasurer of United States most accessible to such court and subject to its order in the cause. (Sec. 4615.) 4. If in any case of capture no proceedings for adjudication are commenced within a reasonable time, any parties claiming the captured property may, in any district court as a court of prize, move for a monition to show cause why stuch proceedings shall not be commenced, or institute an original suit in such court for restitution. (Sec. 4625.) As a financial proposition it doubtless would be unprofitable for the United States to institute judicial proceedings to condemn the wrecks under consideration as prize of war. As a legal proposition it is questionable whether such proceedings could be maintained when instituted aftel the treaty of peace has been ratified and exchanged. (Brown v. United States, 8 Cranch, 110, 148, ante.) Possibly as to such of said wrecks as were the property of the Government of Spain at the time they were wrecked and abandoned the title of the United States is complete, either by the laws of war or the treaty of peace, or both; and if not there is little likelihood that the Government of Spain would assert a claim for compensation were the United States to sell said wrecks. If the Government of the United States shall now sell and dispose of any of these wrecks which at the time the vessels sunk were owned by private parties, without having the wrecks adjudged prize of war, or derelicts, and sold by judicial proceedings, such private owner or some marine insurance company is quite likely to (all upon the United States for compensation. It appears to the writer that if such of these vessels as were owned by private parties are considered as wreckls or derelicts, it still follows that the title was not divested by the sinking and abandonment: The title of the owner to property lying at the bottomu of the sea is not divested, however long it may remain there, and no other person can acquire such title except by a condemnation and sale in admiralty. (Murphy r. 1)unham, 38 Fed. Rep., 504; Baker r. Iloag, 7 N. Y., 555; Ang. on Tidewaters, chap. 10; 1 Bl. Conmm., 290-295). The rule is the saime under the laws of Spain in force in Cuba. The Spanish Code of Commerce provides as follows: ART. 842. The gootls saved from the wreck shall 1)e specially liable for the payment of the expenses of the respective salvage, and the amount thereof must be paild by the owners of the former before they are delivered to them, and with preference to any other obligation if the merchandise should be sold. The Spanish Code of Civil Procedure provides as follows: ART. 2122. * * * Fourth. The sale of goods saved from shipwreck shall be subject, according to circumstances, to the proceedings mentioned in the foregoing rules. The judge who has ordered tleir deposit shall order the sale of the same ex officio when proper. The attention of the Secretary is directed to the advisability of dealing with these wrecks solely as obstructions to the navigable waters of Cuba, and therefore e lsta',ce. 1394 —03 36 562 The military government of the island would then be at liberty to abate such nuisances without regard to the questions of ownership and value. The abatement would be accomplished by an exercise of the police power of a state, pursuant to the right and obligation of the military government to keep free froml obstruction the navigable waters subject to its jurisdiction. The views expressed in the foregoing report were approved by the Secretary of Warr. The question of dealing with said wrecks as nuisances was referred to the Navy Department and the Treasury Department. Both said Departments informed the Secretary of War that they had no objection to offer to that course being pursued, and thereupon the Secretary of War instructed the military governor of Cuba as follows: OCTOIERn 31, 1901. SIR: * * You having reported that said wrecks are serious obstructions to navigation, and their immediate removal desirable, the military government of Culba is herelby authorized to consider and deal with said wrecks as?uis-ances and alate thelm by an exercise of the police power of a state, without reference to proprietary rights therein, inchoate or otherwise, or to their property value. In taking action to abate said nuisances, the military government is authorized to employ Iersons or concerns who are willing to accept payment for services rendered in removing sai(l obstructions in the values realized from the wrecks. If such course is adlopted, a report and accounting thereof shouldl le Inade to the Secretary of War for transmission to the Secretary of the Treasury; or you are at liberty to summarily destroy said ol)structions and charge tile expense to the revenues of tle island. I transmit herewith coly of report on this matter by the law officer, Divisiol of Insular Affairs, wherein are set forth tle objections to dealing with these wrecks either as prize of war or as derelicts, and the complications and liability which may arise if either the lTnited States or the military government of Cuba shall dispose of these wrecks by an exercise of the rights of a proprietor. Very respectfully, Il, 1r ]IoT ROOT, 8ecrcetcar of 1I' r. Brig. (Gen. LEONAR) WOO), Military Goernor *of Cul'bt, Itl)aa,S(, ua). IN RE REQUEST OF THE MILITARY GOVERNMENT OF CUBA THAT THE WAR DEPARTMENT REQUEST THE STATE DEPARTMENT TO APPLY TO THE GOVERNMENT OF SPAIN FOR RELEASE FROM PRISON OF EULOGIC IDULLA SAEZ. [Submitted July 31, 1901. Case No. 3192, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge the receipt of the papers in the above-entitled matter and your request for a report thereon. In response, 1 have the honor to report as follows: The case is thus: Saez was a soldier in the Spanish army. He came with his regiment to Cuba, where he deserted in 1894. Afterwards he 563 joined the insurrectionary forces in Cttba. Ie was taken prisoner by the Spanish forces oil the 30th of April, 1896, while participatilng in an engagement betweenl the Spanish and insulllrectionary forces. -ie was placed oil trial before a Spanish court-marti-al chargedl with violating the prLo\isions of article 222 of the Spallish lllilitary code. On AI:v 4, 189, he was convicted ald sentnced to "' c Itl pc('/7cttat" (perpetual chains). lie was trallsported to Spalill and illcarcerated in a Spanish p)enitelltiary, where he now is. The I)epartment of State and Governmllll t of the islanld of Cuba}}t is of the opinion that this ailnll is entitled to release froill custody by reason of the provisions of article 6 of the treaty of peace (I)eccllbci 10, 1898), and calls upon the AVar Depalrtlment of the lUnited States to request the State Department of the United States to make appl-lication to the Goverlllent of Spain for hlis release. The question involved is whether or nlot this case falls withini the requirements of -article 6 of the treaty of peace. Inl the opinioll of the writer that question is to be determined by the State Department. If the treaty is being violated, it also devolves upon the State Departnientt to determine what steps, if aIy, shall be taken ill respect thereof. The only question the Secl'etary of War is called upon to determlinle is whliether or not lie will advance tile papers to tle State Department. Since the State I)epartinent is at liberty to decide for itself whether o' not it will present the application to the Sptlanish Governlnent., there appearsl' to be lno objection to transmitting the papers ill tile case to that l)epartment. It is incuni)ent 1)upon the WVtar I)lepalLtllnet to futtrlishl the State DLepartmlment all information in the possession of the War Department ill regauLd to said nmatter which mnay l)e of use ill deternlllliig tle (qllestion involved. Article 6 of the treaty of peace provides for the release of persons ill prison for political offenses by the following provision: Slpain will, npon tlhe signature of the lresent treaty, release all prisonelrs of -ar, and all persons detained or inmprisoned for political offenses iIn connection witlh the insurrections in Cuba and the l'Philippines and tle war with the liUnite(l States. This miiian was convicted of the offense penalized by article 222 of the Slpalnish iilitary code, which is as follows: Whosoever is includel in any of the followinll nlulers slhall lbe )lunislled with death, after degradation in a proper case: 1. lie whlo, abandloning is flag, enters to formn a )part of the enelny's armyl-. 2. lie who induces a foreiign power to declare war against Spain, or negotiates with said power for suchll a urIose. 3. l-Ie who raises in armis in or(ler to dismembel)r any part of tle national territory. 4. MIembers of all classes of troops, who are not leaders or promoters, taking part inll this crime, shall suffer a penalty extending from cotdena temporal to cadetlc pcr)eclewt. It will be seen that the offense penalized b)y the foregoing article consists of two acts-first, deserting the flag of Spain, and second, 564 joining the forces of the enemy. The gravamen of the offense appears to be joining the forces of the enemy. The penalty for desertion alone as prescribed by article 392 is as follows: On deserting for the first time, without any qualifying circumstances, two or more years of service shall be imposed in time of peace and four years in time of war. (The service referred to in the foregoing article means service in the army and not penal servitude.) It appears from the papers herein that shortly after Saez deserted proceedings were instituted against him, in which he was declared in default because he did not enter appearance in the suit and could not be arrested. He was adjudged guilty and condemned to serve two additional years in the military service, pursuant to provisions of article 322. But when he was captured and found to be guilty of joining the forces of the enemy in addition to desertion, that sentence was annulled, and he was tried, convicted, and sentenced under article 222. It will be seen that the question for the State Department to determine is, Does the act penalized by article 222 constitute -a political offense in the sense in which that expression is used in article 6 of the treaty of Paris? In the transcript of the proceedings transmitted to the War Department reference is made to articles S8, 177, 185, 222, 270, 273, 322 and 610 of the Spanish milita'ry code. I transmit herewith the English version of said articles. TRANSLATION OF ARTICLES 88, 177, 185, 222, 270, 273, 322, 610 OF THE SPANISH CODE OF MILITARY JUSTICE. Atm. SS. Tle c(llamber of justice shall le composed of seven advisers (consejeros) whleu it is to pass upon sentences renderedl by courts-martial and demandl judicial reslponsibility. 'When passing 1)(1o otller subjects within their jurisdiction five advisers are sufficient. In thle first case at least two sliall le graduate attorneys (togados), and in tle second case the presence of one shall be sufficient, whio shall belong to the armyl or navy, according to the division to whiicli the subject pertains. In olrer to take cognizance of matters procee(ling fron naval courts tlhe clIamnl-er shlould b1e co(mpos((ed of tlhe general advisers and thle attorney of tile navy. In order to take cognizance of matters l)roceeding from military courts thlree advisers shall be generals of the army, and an attorney of the samle. In both cases the number sliall be completed from among those who lhave served longest in the other classes which ordinarily compose the chamber. ART. 177. The penalties which military courts may impose as chief penalties for crimes included( in this law are of two classes-some military and others collnon. The mlilitary penalties according to their degree of gravity are as follows: 1. Death. 2. Reclusion mnilitar perpetua. 3. Recl.si6n m7ilitar temporal. 4. Prision?nilitar mayor. 565 5. Loss of employment. 6. Prisio'n iiilitar correcciooal froni three years and one day to six years. 7. Separation from the service. 8. Prisio'n mdiitar coirrccciowdi up to three years. Common penalties in the same graduated order of severity are: 1. Death. 2. C~adeizaJ)rpi. 3. Reclusio'n p(erpetoa. 4. Cadeiia temiporal. 5. -Reclinion tewmporal. 6. Presidio ma//or. 7. JPrisio'n m)ayor. 8. IPresidio corrcc~iowd. 9. Prisio'n correccional. Aw~r. 185. The death Jpenalty shall include mnilitary degradation in the cases where the law expressly providles for the same. When the same is not executed onl account of the criminal having- been pardolle(l, it shall include thle loss of employment for officers, and for 1privates exlpulsion from the ranks of the armv with the loss of all righits therein acquiredl. The accessory lpenaltics carry with thiem the penalty of imnprisonmient. The penalty of j)rission na//lor andl that of p~ixi.(W coirrecciotial for more thani three y-ears shiall. carry, with them mm foi- officers, sepiaration fruin the ser-vice, anid for pm1 -vate~s loss of eniployinent andi a lplace inl a (IisciJplinary corps for the time whlich-I they,should atfterwards serve inl the ranks, discounting forl all purposes the I~eriodi of the sentence. One sentence imposted upon at crininial s-hall iiiclude thie penialties accessory to s~everal lplnishmnents, the comnbinedl (luration of which exceeds three years. Airr. 222. Whosoever is includ~ed inl any of the followingy nlumlters. shall. be Innished with (death, after (legratlation in a proper (.case: 1. Ile who, abandoning his flag, enters to forma a part o)f thie~ enemyv s armny. 2. Hle who induces a foreign power' to declare war againist Spain, or nego~tiates with saidl power faor suich ai purpose. 3. 1 horissm armns inl Order to (lismuemuber anN. pa rt of the n~ationjal territory. Menmbers of all classes of troops-, who are not leaders or pro~mmoters, taking part in this criin e, shiall suffer a pienalty exteniding from catdena. tempomral to wIca/hot pe(rpftna. 4. Ile whio inl order to favor the eneuiv shouild surrender thie force undler his coniinamid, the towni or place Founfiedl to his charge, the flag, the coiinnlissary or xa r stipplies, or affords the enemny any- other mneans or methods of offense or (lefense. 5. Ile wNho,should sedluCe the Spanish troops, or those inl the service of Spain, in ordler that thiey pass to the ranks of the ei(ieiny or (lesert their flapg in tfime of war. 6. Ile who, being inl action or albout to enter, should flee in the direction of thle eneniy. It shall lie considered that thle flight was inl the direction of the enemny when the accusel (loes not prove that the crime comite as a. (hifferent one. 7. He who (lirectlv or hid irectly sustains relationsl with the enemy with regard to the operations of the wvar. ART. 270. The military officer who (leliberatelv and without authiority- assumes or retains a command shall be liable to a penalty extending from prisio'n inilitar correccioiial to that of prisioJn )ailitar )wq0/or. ART. 273. Desertion from thle service, treated of in the two foregoing articles, being agreed to by three or more persons,-, shall be considered as sedition. ART. 322. On (leserting for the first time without any qualifying circumstances, two or more years of service shall be imposed in time of peace and four years in time of war. 566 ART. 610. When a decision has been reached, the presi(lent of the chamber, or the poneite in a proper case, shall coiniunicate the same to the recording secretary, in order that he may record it for signature. Tllis being done, lie shall deliver the rulings to the secretary of the council, with certified copies of the same, vised by the president of the chamber, so that through the president of the council they may be forwarded to the authority charged with the execution thereof. The request of the military government of Cuba upon which the foregoing report was made was transmitted to the State Department by the following letter: JULY 31, 1901. SIR: I have the honor to transmit herewith the request of the departmlent of state and government of the island of Cuba that the Governmente of the United States request the Government of Spain to release from imprisonment in a penitentiary in Spain one Eulogio Idulla Saez, who was convicted by a Spanish court-martial in Cuba of having violated the provisions of article 222 of the Spanish military code and sentenced to c(dlena per7)etua. The department of state and government of the island of Cuba entertains the view that this case is within the provisions of Article VI of the treaty of peace (1898). Whether or not the United States will assume that position is a question to be determined by} the State Department. I transmit also a copy of the report hereon by the law officer of the division of insular affairs, setting forth the provisions of the Spanish law under which Saez was tried and sentenced, and othler matters connected therewith not fully appearing in the documents received from Cuba. This Department will be pleased to receive an expression of your views on this subject for comnlmmication to the military government of Cuba. Very respectfully, WMt. CARY SANGER, Acti'lg Secretary of aTTr. The SECRETARY OF STATrE. IN RE NOTE FROM THE SPANISH MINISTER AT THIS CAPITAL TO THE SECRETARY OF STATE, SUGGESTING THE CONCLUSION OF AN AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE GOVERNMENT OF SPAIN IN RESPECT OF THE DISPOSITION OF THE STATIONARY BATTERIES, WAR MATERIAL, ETC., LEFT BY THE FORCES OF SPAIN IN CUBA AND PORTO RICO, UPON THE FAILURE OF THE MIXED EVACUATION COMMISSIONS TO AGREE AS TO THE TITLE AND FINAL DISPOSITION THEREOF. [S1ubmitted February 1, 1900. Cas.e No. 11(;4, Division of Insular AfTairs, rWar I)epartment.] SIR: 1 have the honor to acknowledge the receipt of your request for a report on the matter referred to in the letter of the Spainish minister at this capital addressed to the Secretary of State, under date January 19, 1900, a copy of which was transmitted by the Secretary of State to the Secretary of War, with a request for a statement of the views of the Secretary of War in regard to said matters. 567 In compliance with said request I have the honor to report as follows: In his letter to the Secretary of State the Spanish minister, )by order of the Government of Spain, directs the attention of the United States Government to the fact that the mixed evacuation commissions, which arranged the terms of the evacuation of Cubta and Porto Rico by the Spanish forces, were unalble to agree as to the final disposition of certain stationary batteries, war materials, and other objects in said islands, and an agreement was entered into that said property should remain in the custody and possession of the United States authorities until the two (Governmlents should re(ach a definitive conclusion in regard thereto. The negotiations of the peace conference at Paris (189S8) were conducted simultaneously with the proceedings of the evacuation commissions at Habana. During the negbtiations at Paris the Spanish peace coimmission proposed the settlement of the question of ownership of these properties situated in Cuba:, Porto Rico, the Philippine Archipelago, and Guam. The American colmission declined said proposal /in toto as to property in Cuba and Porto Rico, it being a question as to which "they were not authorized to treat,," and as to war material in the Philippines the American commllission stated that such material should be governed by the same conditions as were agreed to by the evacuation commissions in the West Indies. As to war material situated il the Philippines and Guam, the American commission subscequently agreed that such material of certain (dlesgnated kind and character should remain the property of Spain. (See message from the President to Congress, Jatnuatry 4, 1899, transmitting treaty of peace with Spain, and protocols of the conference at Paris; Senate Doc. 62, part 1, Fifty-fifth Congress, second session, pp. 22S, 229.) This agrement of the American commission relating to the Philippines and (uam was incorporated in the treaty of peace as Article V thereof. [Upon Manila being evacuated by the Spanish and occupied by the Americans the Spanish officials laid claim, on behalf of Spain, to several pieces of property which the American officials felt bound to refuse recognition oin behalf of the United States. The negotiatiois contelplated by the agreements of the peace commlissions and evacuation coiinissiolns have not yet been initiated, and the purpose of the letter of the Spanish minister is to ascertain if the United States Government is now prepared to enter upon such negotiations. The negotiations wbhen entered upon will be between the Government of Spain on the one hand and the Government of the United States on the other. As to the disputed property in Porto Rico, the Philippines, and Guam. the United States will be called upon to maintain its own rights as a proprietor. As to the disputed property in 568 Cuba the position of the United States will be practically the same during its negotiations with Spain, the question as to the disposition of said war material by the United States after the claims of Spain thereto have been adjusted being one to be settled by the United States hereafter. Under these conditions it seens to the writer that the negotiations are properly within the jurisdiction of the State Department, and that the purpose of the Secretary of State in transmitting the letter of the Spanish minister and asking for the views of the Secretary of War on the subject-matter of the letter was to learn1. If the War Department had any objections to carrying out the existing agreement to attempt an amicable settlement by negotiations between the two Governments. In other words, are there military reasons or other reasons known to the Secretary of War for the United States continuing to hold possession of said property without regard to the rights of ownership 2. Is the War DIepatment now prepared to furnish the data( requisite to a proper presentation of the claimls of the United States? For the proper determination of these questions it is necessary that the Secretary of War be accurately advised as to the exact property, now in the possession of the United States, to which Spain lays claim. It would seem manifestly just and proper that the Government of Spain should furnish the United States with a list of the property claimned before a determination was la(lde )by the United States as to whether or not it was prepared to enter upon the presentation of the case. Such list would be of advantage to the United States for the further reason that the claims of ownership and right of possession asserted by the Government of Spain are controverted as to certain properties by municipalities and individuals in several instances. The municipalities claiming that the property was purchased or constructed with municipal funds and belonged to the municipalities under the Spanish law; and many of the harbor works are claimed by local boards of harbor works as private property belonging to them in private right and not by virtue of any official relation to the Spanish Government. If the claims made by these third parties are well founded, their rights should be respected, and under the conditions existing their protection devolves upon the United States. In order to ascertain what these rights are, it is necessary to know on what the Government of Spain rests its claim of title. It would greatly aid the War Department in investigating the claims of third parties if it were informed as to the facts of the original acquisition and subsequent dealing with the property by the Government of Spain. I suggest that the Spanish Government be requested to inform the United States Government upon what facts it bases its claim to proprietary rights, including possession of the disputed property. 569 For the convenient reference of the Secretary of War I have attached copies of the following: 1. Extract from cablegram sent by American evacuation coinmission to Adjutant-General Corbin for the President, stating position taken and reply of President sustaining the American commission. Also extract fronm note of American commission to Spanish commission. (Exhibit A.) 2. Article III of the agreement for evacuation, referring the disputed questions to the two Governments, and the dispatch to AdjutantGeneral Corbin for the President, with reference thereto. (Exhibit B.) 3. Extract from protocol No. 19, December 5, 1898, proceedings of peace conference at Paris. (Exhibit C.) 4. Article V of treaty of peace with Spain (1898). (Exhibit D.) EXHIBIT A. [Extract from cablegram to Adjutant-Ceneral Corbin for the President, stating position taken by American commissionl, and reply thereto.] Fourth. That under Spanish law, all movable things constructed or destined for permanent use or service, of immovable property, become iiinovable property, and fortifications and fixed batteries are immlovable property, that therefore gulls anll their niountings and other things intended for permanent use or service of such fortifications are necessarily fixtures and hence inillovable property, and likewise achinery aind other like fixtures in navy-yards or arsenals. In reply tlereto, tile following imessage was sent: General Wade, JfIl(tlba: Your message of October 5 giving the differences between the Spanish comlmissionlers and vourselves is received. Tlleir claims are wliollv inadlnmissible, andl yours are in strict accordance with the protocol and the instructions heretofore given and must l)e adhered to. WILLIAMI McKINLEY. H. C. CORBaIN, Aldjotoato-(G'ic'rol. (See pp. 74 and 75, Proceedings of the Commissioners, on file in War Department.) Theretupon the American commission sent a communication to tile Spanish commission, from which the following is quoted: Fourth. Under the law, all movable things constructed or destined for permanent use or service, of immovable property, become immovable property. Fortifications anii fixed batteries are immovable property, and therefore guns and their mountings andt other things intended for permanent use or service of such fortifications and batteries are necessarily fixtures and hence inmmovable property, and likewise machiiiery and other like fixtures in navy-yards or arsenals, and shears on the docks of Habana are of this class of property, and being attached to the soil and under the law i-nmmovable property, Spain has no right to dismount and remove the same and any part thereof. (Ibid., 76.) EXtHIBIT B. [Cablegram to Adjutant-General Corbin for the Iresident, and article 3 of convention for evacuation.] HABANA, Norvembler 16, 1898. General CORBIN, T(Wshin7gton. For the President: In joint session this morning the two commissions agreedl upon January 1, 1899, as date for completion of final evacuation of Cuba by the forces of 570 Spain, or sooner if possible. Provision made for residence of such Spanish troops as for unavoidable reasons can not be embarked at an earlier (late. Agreement also made as to what Spanish troops shall carry with them. But in matter of fixed property irreconcilal)le differences heretofore existing still continue, making agreement impossible. Both commissions agree to refer question to their respective Governments, status quo ante to be preserve(d by Spanish authorities pending final decision in matter. Particulars of whole subject of agreement by mail. WVADE, Chiirman. CIo',s, Secretary. ARTICLE III. An irreconcilable difference existing between the commissioners of the (overnment of the United States and the commissioners of the Government of Spain, respectively, parties to this agreement, as to the disposition of the public property of Spain in the island of Cuba, and the adjacent Spanish islands, consisting: First. Of artillery in fixed batteries and fortifications, the fixtures and other property thereto belonging, as heretofore inventoried, under the direction of the aforesaid commissioners, by Lieut. Col. Joaquin Ramos, of the Spanish army, and Capt. J. C. W. Brooks, United States Volunteers. Second. Of the machinery and fixtures and other property and material of war heretofore in dispute in the "maestranza," in the " pirotecnia Imilitar,"' and in the "arsenal" in Habana, and of other military and naval property of a fixed character in barracks, hospitals, quarters, an(t other buildings; and Third. Of the real estate and pullic buildings on said islands belonging to or under the control of Spain. It is agreed by the aforesaid commissioners, respectively, that in respect to said property the statu quo ante shall be preserved until the existing differences concerning the disposition of said property shall have been finally settled by the proper authorities, and the aforesaid commissioners of Spain do hereby agree that the said property shall, pending such settlement, be securely kept and not disposed of in any manner. I)one at Habana, in duplicate, in English and Spanish, by the undersigned, who have hereunto set their hands and seals the 16th day of November, 1898. (See page 117 Proceedings of Evacuation Commission, on file in War I)epartment.) ExHIBIT C. With regard to the return of the war material in Cuba and Porto Rico not disposed of by the evacuation commissions, the American commissioners declared that they were not authorized to treat. With respect to the war material in the Philippines, the American commissioners stated that it should b)e governed by the saine conditions as were agreed to by the evacuation commissions in the West. Indies. The President, of the Spanish commission and his colleagues maintained that tlle cession of the archipelago did not carry and could not carry with it anything exc ept what was of a fixed nature. They explained the character of the siege artillery and heavy ordnance which the Americans clailmed for themselves, and after some discussion to the end of determining precisely what each commission understood as portable and fixed material, it was agreed that stands of colors, uncaptured war vessels, small arms, guns of all calibers, with their carriages and accessories, plowder, anmmunition, live stock, and materials and supplies of all kinds belonging to the land alld naval.forces shall remain the property of Spain; that pieces of heavy ordnance, exclusive of field artillery, in the fortifications shall remain in their emplacements for the term of six months, to be reckoned from the ratification of the treaty; and that the United States might, in the meantime, purchase such mliaterial from Spain, if a satisfactory agreement between the two Governments on the subject should be reacled. 571 - EXHIBIT I). The U'nitedl States will, upon the signiature-, of the presenit treaty, send b)ac~k to Spain, at its own cost, the Spaniish soldiers taken as prisoners of war on the calpture of Maniila by) tile American forces. The arms of the soldiers in question shall b~e restored to them. Spain will, upon the, exchange of the ratificationss of the lpresenit treaty, proceedl to evacuate the Philippines, as well as the isla(id of Guam, on termis siMilar to those aigreed upon by thle commissioners,appointed to arrang-e for time evacuation of Porto Rico and other isands in tile West4 Imidies, 111111r the p~rotocol of August. 12, 1898, whlich is to continue in force till it~s provisions are comipletely execuited. The time witllin whic(h the evacuiationi of the Phiflipphie Islands andl Guam shall he comnlleted shall lbe fixed by the twvo Governments. Stands of colors, llncaptllred. war vessels, small arms, gulls of all calibers, w-itll their carriages anid accessories, powdler, amnimnmtioml, live stock, and materials, and. sulpllies of all kinds belonging to the lamI aml niaval forces of Spain ine the Phlilippines andl Guiam remain thle pr1)pertv of Spain. P~ieces of leavy ordniance, exclusi-ve of field artillery, ini the fortifications andl coast (defenses shiall remain in their emplacemenits for the termI of six Months, to be reckoned from the exchanige, of ratifications of tlle treaty; anil the Uniited States may, in the meantinle, lpurcllase suich. material iroml Spain if a satisfactory agreement betweemi the two Govermnlents 011 tile s-ubject. shall be reachied. The Secretary of 'War approved of the view expressed in said report, that the proposed negotiations would not be within the jurisdiction of the War 1)ep, l arartment. li uther approved of the suggestion that the State IDepartment be requested to call upon the Government of Spain for an itemized statement of the. property claimed. TIe state Department was so adlvised. -and subsequently received the de'sired statement fromt Spain antid transmitted it to the 'War Department. Thereupon the sitatement, was forwarded to the military authorities of the United States in Cuba and P~orto Rico for' report,. The reports being received wvere transmitted to the State l)eplartment. wherein1 the neogotiations wvith Spain are now p)ending. (See tiles in office of Adjutant-General, U7. 5. A., War IDepartment.) THE CONCESSION TO CANALIZE THE MATADERO RIVER FROM THE CRISTINA BRIDGE TO THE BAY OF ATARES. [Submitted August 28, Ca9 se No0 771, Division0 of hisular Affairs W ir Departmnlmt.1 SYINOPFS IS. 1. The concessiomi to canalize tile Mlatadero River from tue Cristina B~ridlge to tile h)ax of liabana at the Atares Cove, grantedl by order of Captainl-Gelneral Blanco, (latedl September 28, 1898, to Messrs. Maitual Gomnez (IC Aranijo amnd Felipe Pelaez dle Amiigo, is )rfima facie a lawvful and existing concession, confeiriug righits, privileges, ajid~ benefits as tlmereimn set forth. 2. The I labamla Canal Company appears to be tile present owner of said concession, aildI as sucih is prian fitce (entitled to exercise tile rights and enjoy the privileges anil benefits thereby createdl. 572 3. Said recognition of said concession as prima facie lawful and existing shall not be construed as conclusive as to the lawful character of said concession nor as to the fact of its legal existence. Nor shall such recognition prejudice the rights of any person, public or private, which are in any way injuriously affected by said concession or by the exercise of privileges or powers claimed under said concession. 4. The courts of Cuba are not bound in any way by such recognition of said concession as prima facie lawful and existing, but shall in all cases wherein the court has jurisdiction consider questions relating to said concession without reference to said recognition. 5. The exercise of the rights claimed under said concession shall be subject to the direction and control of the provisional government in all matters relating to the public health and welfare, or other necessity requiring the exercise of the police power of the State. The Matadero River runs through a portion of the municipality of Habana. The cove of Atares is a portion of Habana Harbor. On August 31, 1996, Messrs. Felipe Pelaez de Amigo and Manuel Gomez de Aranjo applied to the Spanish captain-general, the governor of the island of Cuba, for a concession authorizing them to construct a canal in said river from the place where the Cristina bridge crosses said stream to the bay of Atares, and also to authorize the use by them of the lands owned by the Crown of Spain along the proposed route of the canal for the purposes of said canal and on which to erect buildings, wharves, and other structures. The application proceeded on its way through the varlious official channels, was the subject of many reports, and finally, on September 28, 189,,Governor-General Blanco, by a decree issued by him as governor-general of the island, authorized Messrs. Pelaez and Gomez de Aranjo to construct said canal, and granted them the use of the public land necessary for the enterprise within a zone of 20 meters on each side of the canal, under certain conditions set forth in the decree of concession. This concession has been purchased by the Habana Canal Company, a corporation, which now desires to exercise the rights therein provided, and makes application to the provisional government in charge of civil affairs in Cuba for permission so to (o. The governor of the island, lMajor-General Brooke, forwards the matter to this Department for determination. At the threshold of this investigation there is met the report of Brigadier-General Ludlow, the governor of the province of Habana, ias follows (see letter dated June 17, 1899): It will be noted that the proposed work affects what is recognized as the mIost dangerous locality in the harbor, involving as it does the disturbance of a mass of putrescible material which has accumulated in the Matadero Creek and the head of the bay during a century or more. The handling of this mateiial and its disposition are matters having serious relation to the question of the public health, and what might be deemed almost excessive precautions are essential unless grave peril is to be incurred. In addition to this, the work provides for the filling in of the low lands 573 adjacent to the channel, and this work likewise, unless colnducted with a full recognition of the responsibility for the results that may ensute, is attended with the dangel of creating an imllmediate andi possibly continuing source of infection. The governor of the island, Major-General Brooke, indorses Brigadier-General Ludlow's report, as follows: Particular attention is invited to the remarks of G;eneral Ludlow regarding the danger which will attend tlis work. I am satisfied his statements are correct. (See indorsemlent June 24, 1899.) Mr. Attorney-General Griggs, in a letter to this Department of date July 10, 1899, discusses the claim of Michael J. Dady & Co., that said company has an existing contract with the city of Habana to construct a system of sewers and pave the streets for said city, and also the demand made b}y said corporation to be allowed to proceed with the performance of said contract, which permission had been refused by Brigladier-General Ludlow, the governor of the province, and the refusal sustained by the governor of the island, Major-General Brooke. In said letter the Attorney-General says: (22 Op., 529.) The practical question for the military authorities in Ial)ana is whether it is advisable, as a public matter, and having in mind solely the public interests, to permit a contract w * * w hich involves the tearing up anld disturbance of tile streets of the city in a manner which may greatly endanger thle public health, to be carried on at the present time. If the authorities were convinced that Michael J. )ady & Co. had a vested right or a complete contract, it would be within their lawful province to suspend its execution, if they thought the public health or other interests required. In tle same way the rights of the parties claiming under this concession, whatever they may be, are suspended, if the exercise of said rights endanger the public health. The THal)anla Canal Company recognizes this limitation and professes entire willingness to perform the work at a time and in a manner to meet. the approval of the G(overnment authorities. The canal company desires that a determination be had at the present time upon its application for recognition of the concession and rights claimed thereunder by the company. The company desires to be advised as to its situation, that further expenditure may be avLoided if recognition is refused, or that the necessary provisions b)e made to performl the work in the winter season. or as soon as the permission of the proper authorities can be secured. It seems to be conceded that the work for which this concession provides will, when accomplished, be of great value to the public, botl in business and sanitation. Regardinc the Matadero Creek, MajorGeneral Brooke says in his indorsement on Brigadier-General Ludlow's letter: I * * * believe a large proportion of the unsanitary condition of the harbor is due to the polluted deposits emptied into it from this stream, into which the offal from the slaughterhouse has been thrown for many years. This has been stopped, and dredging is now in progress. 574 The canal company claim that by confining) the water of the creek within the banks of a canal the force of the current will be increased, the filt1h of yNears scoured out the channel, the deposit of filth at the mouth of the stream lessened if not removed, and the forniation of such deposits hereafter prevemited. The stream will. then drain- the swaumps adjacent thereto, aend the "filling'f up") of the lowland will also be of great ad van tage. If the (a~nal coimpany are allowedl to do this work~ under said concession, it will be without expense to the Government. Trhe compensation to be received by, the company is the righ)It to use certain lands, nlow of such character and condition as to be of little if aniy use. The decree confirming the grant not being signed and promutlga~ted at the tiime the agreement evidlenced by the protocol of August 12, 1898, was entered into, could said grant be perfected thereafter by action of the Spanish Crown or its officers? InI larcour-tv'. Gaillard (12 Wheat., 0528) the court say: War is a suit lprosecutedl by the swordl, alld whewre the (/uestwfl to be diecidedi is one of ornffiwl claint to territory, grants of soil uiadej1toyranute bello by the lparty that fails- can only derive validlity fromt treaty stipulations. TrhiS- case is cited to direct attenmtion to the rule where war is waged to (lecide a controveisv between conflicting claims to the same territory. W-here the title, of the soNvereig-,,n InI Possessioni is admnitte2d. afnd the w-ar is w-aged to compel himii to cede his title or relinquishl it, the rul isdifernt andsuc sovereign may convey his prmoperty duringr the war so long() as hie prevents his adversat-ry from secutring; po5s.C55soti thereof, and the conveyance is nade iiigo at n ntfrtel' poeof preventing his adversary f rom securing' Nsaid rpetl(11 pose2 Plcap 33Pses.23(2Hal-5. lecl's hIt. Law, 3d ed., vol 2Ica.3se.2,2,2. That the United States considere(1 the title to public property' i n Cuba to be iii the Crown of Sptain is shown by the provisions of the trelaty of peace (Paris, 1898), as follows: Axrt. S. ***spain relinquishies Iin Cuba ***all tie lbuildingps*** and other inmmovable prolperty which, in conformnity with law, lbelong to the p)ublic domain, and1 us suhel belong to the Crown of -Spain. Trhe United States dealt with Spain, in neg-oti-ating' the late treaty of peace, as a pr'oprietor, not Ia pretendet', and required Spain to relinquish a, title, and not simply a elaiYY6 of title. If Spaiii were possessed of title to relinquish in December, 1898, it possessed such title prior thereto and might transf er the same if acting in good faith. As to individual rig,)hts, a treaty is considered as dated at its ratitication. (ilavervt. Yaker, 9 Wall., 32; United States t. Arredondo, 6 Pet., 748, 7 49; United States tv. Sibbald, ho - Pet., 313, 323.) Did the Crown of Spain complete the grant of the (concession claimed herein prior to the relinquishment of property rights to the public, doniaimm in Cuba? 575 The beneficiaries under the concession claim a1 compllete franchlise. There is on file with the papers herein a written opinion bly,Jun F. O'Farrill, the city attorney of Habana, holding that the decree of the governoi-general granting the cooncession is null and void. The questions presented are questions of law. They relate to rights of property, both real and personal. Their determinatiol is 1)ropeLly a matter for the courts and not for this lDepartment. The courts of Cuba are open and resorted to for the purpose of adjudicating legal questions. Those courts are familiar with the Spanish laws, decrees, customs, and traditions under which the concession was appl)ied for and by which the question of the legality of the glranlt Iust be determined. Eventually the rights claimed tlder the grantlt involved herein nmustt meet the tests of the Courts of Cuba relieved of the presenc(e of the provisional government now existing in the islanld. Why not refer them to the courts at this time? The courts of Cuba are without jurisdiction to pass upon tile abstract question of the validity of this concession upon the same )ein'g presented to them independent of an actual case pendingl. But said courts have jurisdiction to pass upon actual controver(sies involvinllg the (ltuestion under consideration. If the exercise of rights claimed ullder tllis concessionl interferes with rights clailmed by the city of Itllabanal or time ownlers of the prop)erty adjacent to tlme streaml to be calnalized, then an action can )be instituted in the courts and tlle entire matter adjudicated. As to grants of land by the previous sovercignl il territory acqultired by the United States, and the faith tand credence to 1be g'iven tll(em, tlhe United States Supreme Courtt say: Thle law presumies tlhe existence inl tlie provinces (of Spainl) of ai tlicer ault Ilrized to make valid grants. (Mitchell et al. r. United States, 9 Pet., 715, 760.) The acts of public ofticers ill disl)osiig,f Ilullic lands, 1by c()olr or claii,,f,public autlhority, are evidence thereof until tlle c'ontrary \ Iappearcs l) thle sfllw)ilg of thlose who oppose tlie title set il) undter it aniI de1y tile lpower 1 v w\licl it is lrofeNssed to be granted. Without tlie reeogn;tio n f this principle there would 1)e n safety in title papers, and no security for tlhe enjoN'lment of proe)rty 111unl(1( thtic. It i, true t}at a grant made without auth'ority is void under all ' go',verlllments, lit in all tle questioll is, on w\homl tlie law throws tlhe lurdeni of proof of its exist'iice (or nllexistence. A granit is void unless tile grantor 11as tlhe power to mlake it, but it is not void because tile grantee does not prove or produce it. (Unitedl States r. Arredondo, 6 Pet., 691, 728.) We have frequently dlecidedl that the publlic acts of public officers, purporting to be exercised in an official capacity anld by public authority, slall not be presumied to be usurped, but that a legitimate authority lhad been previously given or subsequently ratified. To adopt a contrary rule would lead to infinite confusion and uncertainty of titles. The presumption arising fromn the grant itself makes it pria.f(tcie evidence of the power of tlle officer making it, and throws the burden,of proof on the party denying it. (Unlited States r. Peralta, 19 tHow., 3431, 347.) This rule or its application by the courts may lbe modified lby legislative enactment and has been cllanged as to our Court of Private 576 Land Claims. (Act App. March 3, 1891, Stat. L., vol. 26, p. 854; Hayes v. United States, 170 U. S., 637, 647; Ely's Adm'r v. United States, 171 U. S., 220, 223-224.) I am of the opinion that the proper rule for the provisional government of Cuba to adopt, is that announced by the Supreme Court of the United States as the one to be followed in the absence of a statute. The United States Congress placed restraint upon the provisional government now in charge of civil affairs in Cuba by the following enactment: That no property, franchises, or concessions of any kind whatever shall be granted by the United States, or by any military or other authority whatever, in the island of Cuba during the occupation thereof by the United States. The treaty of peace with Spain (Paris, December 10, 1898) provides that, as to CubaThe United States will, so long as such occupation shall last, assume and discharge the obligations that may, under international law, result from the fact of its occupation, for the protection of life and property. (Art. 1.) And also to seeThat the relinquishment * * * can not, in any respect, impair the property or rights which, by law, belong to * * * associations * * * or private individuals. (Art. 8.) Obviously the wise course is to proceed through the courts, and allow them to pass upon the claims of rights and privileges whenever it is possible. To do this it is necessary to afford recognition in the sense of permitting the exercise of rights which primafaccie appear to be existing. The proceedings upon which this concession is based were instituted August 31, 1896. Notice of the application was duly published in the Official Bulletin. Thereafter the project pursued the course prescribed by law and was submitted to and received the approval of the provincial and superior boards of public works, the local provincial and superior board of health, the board of harbor improvements, the chamber of commerce, the superior navy and harbor masters' council, the military engineer corps, the city corporation civil governient with provincial consulting board, the general staff of the military government, and the cabinet of the insular government. On September 16, 1897, the chief engineer of the province submitted his report, incorporating therein an account of the proceedings, including the favorable reports above-nlentioned, and advised the granting of the concession upon terms contained in his report. On October 1, 1897, the governor of the province of Habana certified to the captain-general of the island that all necessary steps had been taken and the requirements of the law fulfilled. Thereafter remained but the signing of the final order by the captain-general..The final order was signed September 28, 1898, and published in the Official Gazette October 23, 1898. 577 IIn reference to the validity of a Spanish granlt of land il Florida, our Supreme Court say-: It was done also on the (leliberate advi(ve of an officer respollsible to tile Crown, whiclh mrakes the presumption very strong, if not irresistible, that everything precedingt it had been lawfully and rightftlly donle. (Mitchel r. United States, 9 Pet., 711, 742.) Under the provisional governlment alaintained in the island by the United States the proceedings in this matter have been as follows: The present secretary of public works directed the concessionnaires to make the deposit required by Article VI of the concession, which direction has been complied with and the deposit made with the present secretary of the treasury of the island and a receipt given therefor. Thereupon the secretary of public works ordered the chief of engineers to restake and lay out the lines.of the canal, which was done, and his report thereon submitted to the secretary of public works, by whoni it was approved and ordered filed. Thereuponl the company commenced work upon the proposed improv-elllent. The United States Supreme Court say: It is doubtless true that a change of sovereignty implies a revocatlon of the authority vested by the prior sovereign in local officers to dispose of the public lands. And yet we think that rule is not controlling in this case, for the new sovereign madle an order continuing the functions of the local officers, and one of those local officers making a sale in accordance with thle provisions of the prior laws caused the money received therefrom to be paid into the treasury of the new sovereign, and that sovereign never returned the mloney thllus received nor challenged the validity of the sale thus made. This is not a case in which the local officers attempted to dispose of public lands in satisfaction of obligations created by the former sovereign, but one in which a sale was made for money, and( that money passed into the treasury of the new sovereign. It would seem not unwarranted and unreasonable to refer to the famliliar rule that where an agent, even without express authority, iuakes a sale of the property of his principal, and the latter with full knowledge receives the money laid on account thereof, his retention of the purchase price is e(luivalent to a ratification of the sale. NWe (lo not mean, however, to state tlhis as a general p)rolositionl controlling all lnunicipal andl governmental transactions, i )t as only one of the circumstances tending to strengthen the conclusion that these acts of the intendant were not inere usurpations of authority, but were in the discharge of duties and the exercise of powers conceded to belong to his office. (Ely's Adims. r. United States, 171 1T. S., 231, 232.) It therefore seenis proper for this D)ep).rtlllent to instruct the governlor of the island of Cuba1. That the contcu'sion to catnalize the Alatcadero River from the Critilna Bridge to tle bay of Iit}labln, at the Atlares Cove, granted by order of Captail-Gelleral Blanco dated Septemlber 2S, 1898, to le,,srs. Manuel Gomez de A1anjo a:nd Felipe Pelaez de Amligo, is pnia),[ ftachie a lawful and existing conces.-sion conferring rights, plrivileges, and benefits as therein set forth. 1394-03 337 578 2. That the Habana Canal Company appears to be the present owner of said concession, and as such is prim'a, ftcie entitled to exercise the rights and enjoy the privileges and benefits thereby created. 3. That said recognition of said concession as prima facie lawful and existing 'shall not be construed as conclusive as to the lawful character of said concession, nor as to the fact of its legal existence; nor shall such recognition prejudice the rights of any person, public or private, which are in any way injuriously affected by said concession or by the exercise of privileges or powers claimed under said concession. 4. The courts of Cuba are not bound in any way by such recognition of said concession as pr'iZafacie lawful and existing, but shall in all cases wherein the court has jurisdiction consider questions relating to said concession without reference to said recognition. 5. The exercise of the rights claimed under said concession shall be subject to'the direction and control of the provisional government in all matters relating to the public health and welfare or other necessity requiring the exercise of the police power of the state. The Secretary of War approved the views expressed in the foregoing report, and thereupon the military governor of Cuba was advised as follows: WAR DEPARTMENT, TlWashington, October 5, 1899. SIR: I have the honor to acknowledge a communication from you of date June 14, 1899, by which you forwarded to this office copy of the concession granted to Messrs. Pelaez and Gomez by the Spanish governor-general on September 28, 1898, authorizing themn to construct a canal in the Matadero River fron Cristina Bridge to the Bay of Atares, and which concession has been acquired by the Habana Canal Company. The Secretary of War has approved the findings made by the law officer of the Division of Customs and Insular Affairs in regard to said franchise, as follows: 1. That the concession to canalize the Matadero River from the Cristina Bridge to tile Bay of Habana at the Atares Cove, granted by order of Captain-General Blanco, dated September 28, 1898, to Messrs. Manuel Gomez de Aranjo and Felipe Pelaez de Amigo, is prima facie a lawful and existing concession conferring rights, privileges, and benefits as therein set forth. 2. That the Habana Canal Company appears to be the present owner of said concession, and as such is prima filcie entitled to exercise the rights and enjoy the privileges and benefits thereby created. 3. That said recognition of such concession as primafacie lawful and existing shall not be construed as conclusive as to the lawful character of said concession nor as to the fact of its legal existence. Nor shall such recognition prejudice the rights of any person, public or private, which are in any way injuriously affected by said concession or by the exercise of privileges or powers claimed under said concession. 4. The courts of Cuba are not bound in any way by such recognition of said concession as prim(a facie lawful and existing, l)ut shall, in all cases wherein the court has jurisdiction, consider questions relating to said concession without reference to said recognition. 579 5. The exercise of rights claimed under said concession shall b)e sul)ject to the direction and control of the provisional government in all matters relating to the public health and welfare or other necessity requiring the exercise of the police power of the state. I also inclose a copy of the opinion rendered by Judge Magoon, to which your attention is invited. Very respectfully,. D. MDEIKLEJOHN, Acting Secretary of Wlar. Maj. Gen. JOHN R.'BROOKE, Governor-General of Cubat, Hab(ta(, (Cba. IN THE MATTER OF THE SPANISH CONCESSION TO CANALIZE THE MATADERO RIVER FROM THE CRISTINA BRIDGE TO THE BAY OF ATARES. [Submitted May 3, 1901. Case No. 771, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge and comply with your request for a report on the questions involved in the above-entitled matter upon a second consideration thereof by the Secretary of War. Upon the face of the papers and proceedings involved in the grant of the concession by the Spanish authorities, it appears that the grant is a completed one, duly and regularly issued. The proceedings by which this concession was secured were initiated August 31, 1896, and on September 28, 1898, the decree granting the concession was signed by the Spanish governor-general of the island. In addition a showing is made that at the time of the evacuation of Habana by the Spanish forces, the concessionnaire was in possession of property and exercising rights under the concession. The military occupation of Habana by the forces of the United States being established, the concessionnaire undertook to continue the exercise of the rights apparently granted by the concession, whereupon the military government prohibited such exercise. This action resulted flrom attention being called to the fact that the final act in the proceedings relating to the grant of the concession, i. e., the signing of the decree by the Spanish governor-general, took place on September 28, 1898, which was after the peace protocol of August, 1898, had been signed. This raised the question, Had the sovereignty of Spain the authority to grant a concession in Cuba during the time elapsing between the signing of the peace protocol and the definite conclusion of the terms of peace? In addition to the foregoing, the claim was made to the military government that under the Spanish system it was necessary for the Cortes to prss a special law authorizing a concession of this character before it could be granted; that no such law had been enacted as to this concession, and therefore the decree was null and void. This raised ihe question: Was the action of the Spanish governor-general 580 ill issuing said decree in excess of his authority under Spanish law? Major-General Brooke, then in command of the Division of Cuba, on Juine 14, 1899, forwarded the matter to the W\ar Department "for decision in regard to the doubt as to its validity." The questions above stated are questions of law, and as involved herein relate to a claim of property rights asserted by a private person or concern. The matter comning on for consideration 1, the Secretary of War, the first thing to be determined was whether the executive branch of the military government of civil affairs in Cuba should exercise judicial functions and determine the questions judi/cialy. The exercise of judicial powers by officers of the executive branch of Government is repugnant to the established ideas and institutions of the United States; and the repugnancy is increased when the executive branch is being administered by the military arm of the government. It is not to be denied that under the law of military occupation the commander of the occupying force nmay exercise all powers of government, including the judicial powers. If it be granted that the military governor of Cuba lmay exercise judicial powers, it does not follow that he is required to exercise them on any and every occasion which may arise, or at all times when application is made to hin for such exercise. As understood by the writer, the administrative policy regarding the exercise of judicial power by the executive branch of the military government of Cuba is that such authority shall be exercised only as necessity requires and prudence dictates, and whenever a controversy between individuals respecting property rights can be relegated to the courts such disposition should be made of it. In pursuance of this policy, examination was made of this controversy to ascertain if adequate means were available for testing the questions involved in the courts of Cuba. It was fully understood that there were no courts of the island having jurisdiction to pass upon the validity of the concession a., a (tbstract plro)positio)n. That is, there were no courts into which the concessionnaire could go and exhibit the concession and without other or different procedure secure a judicial determination of the question, is this concession valid? lBtt it does not follow that there is no method known to the Spanish law, llor procedure to the courts of Cuba, by which jurisdiction may be secured and judicial determination made of that question by the judicial branch of the government of Cuba. Under Spanish law the courts of Cubatl possessed jurisdiction to hear and determine actionls arising on trespass; on implied contract to pay for use and occupation; on forcible entry and detention, and other actions of like character. They were also aluthorized to order restitution of property, of which the owner had been unlawfully deprived or dispossessed. 581 It appeared certain that the r-ights provided for in the eoncession coukditiot 1)e exercised without interfering wvith rights claimed by some illliidivital, aissociatioti, corpmo-ationl, 1oi u iciality or other branchl of the governmient. If so. u1pon the comumission of all Overt act, m.iii action in the courts for- dainanes 01- restitittiomi XXvoulll lie. i1.n 5s1(11 actionl thle co)lleessionlmaire, would attempt to justify. by p)leadhing the concession. Thereupon the cour-t would haVe jur-isdiction to determinhe the question of the, validity of such concession. T~t wvas wvith referenice to this view of thle matter that the first rep~ort hereon set forth that[he, couirts~ of Cuba arc, without jurisd,(iction to Pass upo)01 the abstract (question of the. validitv of thisd (.olces~sionII uponI the saute being presented1 to thein in(lependient of an actual case pending. Buit said1 courts have jurisdiction to ptass 11po01 actual comitroversies involving the question under consideration. if the exercise of rights claimed und1(er this conces,,sioni interferes, with rights claimied b)v the cityv of Hlabana, or tlhe own-ers of the prop~erty adjacent to the stream to 1)e canalized, then an action can be ins-tituited in the courts and1 thre, entire matter adjudicated. Unider Spanish dominion, and I thinik under the present government of Cluba, if the executive branch of tile government had exercised the judicial powers 1)elonging to it and judicially (letermimned that said comicession was valid, the courts of the island wouldI be bound by such4 dete.rmination. It was not thouight necessary or expedient to thus d is,pose of the matter. The situation did not requ ire it. -Maj or-Gen ieralI Brooke found tile concessionniaire at work oil this undertakinig andl ordered hiimi to quit, and the question was: Shou'd that order be rescinded? Ini explanation of his order suspending the work, _MajorGeneral Brooke stated that the doubt as to the validitv of the conicession arose f rom the f act that the fimial. act consuimunating the grant was performed afteti the Iprotocol of August, 18., was signed. The. questionI thus preseiited was onec of (((iItiniti,(tte )oliwy rather than of iaa'. The question was: Shall the military governtment of Cub~a arbitrarily declare that each anid every concession made by Spaniish author-ity in Cuba, which was not absolute and complete wheni the protocol of August, 1898, was sigoned, shall b~e considered null. and void? Vdhen any administrative policy for the govermnenit of Cuba comies~ oni for- conisider-ation, the first iniquiry is as to the rule iii regard thereto establ-ished by the laws of war anid of niations. This course woul1d be ptursued in the ab~senice of treaty stipulations requiring it; but lby tile tr-eaty of peilce Nvith Spaini (Paris, 1898S), the United States )olund. itself toas~sume andl discharge the 01)1igations that m iay lmider i Iternational law result from the fact of its occupation for the protection o)f life and property. (Art. 1.) Beinig bounid to follow the rule, established liv international law, it became necessary to ascertainMi wat thel rule is. 582 If the war between Spain and the United States had been waged to settle conflicting claims to territory, the rule would be as declared by the United States Supreme Court ill Harcourt v. Gaillard (12 Wheat., 528), wherein the court say: War is a suit prosecuted by the sword; and uwhere the question to be decided is one of original claim to territory, grants of soil made flagr(ante bello by the party that fails can only derive validity from treaty stipulations. But when the title of the sovereign in possession is admitted and the war is waged to compel him to cede his title or relinquish it, the rule is different, and such sovereign may convey his property during the war so long as he continues in possession thereof and the conveyance is made in good faith, and not for the purpose of preventing his adversary from securing said property. This rule was deduced by the writer from the discussion of the subject in Halleck's International Law. Since the correctness of the rule is denied by the officials of the military government of Cuba, said discussion is quoted in full, as follows (see Halleck's Int. Law, 3d ed., vol. 2, chap. 33, sections 23, 24, 25): ~ 23. But if war be declared and actually commlenced, and one of the belligerents has made manifest his intention to effect the permanent acquisition of a particular portion of the territory of the other (which intention is afterwards accomplished by actual conquest), and after the declaration of such intention, and while preparation is being made to carry it out, the original owner alienates that territory, in whole or in part, is the conqueror bound to regard such alienation as a valid transfer, or may he disregard it in toto as being an illegal attempt to deprive him of the rights of war? In other words, did not his avowed determination to effect the permanent acquisition of such territory, his preparation to make the conquest, and his ability to effect it, as proved by the result, give the conqueror some inchoate or inceptive right to the territory subsequently conquered; or did they not at least suspend the right of the original owner to alienate it? In order to obtain a satisfactory solution of this question we will recur to fundamental principles. The rights of conquest are derived from force alone. They begin with possession and end with the loss of possession. The possession is acquired by force, either from its actual exercise or from the intimidation it produces. There can be no antecedent claim or title from which any right of possession is derived, for if so it would not be a conqtuest. The assertion and enforcement of a right to possess a particular territory do not constitute a conquest of that territory. By the term conquest we understand the forcible acquisition of territory admitted to belong to the enemy. It expresses, not a right, but a fact, from which rights are derived. Until the fact of conquest occurs there can be no rights of conquest. A title acquired by a conquest can not, therefore, relate back to a period anterior to the conquest. That would involve a contradiction of terms. The title of the original owner prior to the conquest is, by the very nature of the case, admitted to be valid. His rights are, therefore, suspended by force alone. If that force be overcome, and the original owner resumes his possession, his rights revive and are deemed to have been uninterrupted. It, therefore, can not be said that the original owner loses any of his rights of sovereignty or that the conqueror acquires any rights whatever in the conquered territory anterior to actual conquest. The former are suspended by and the latter derived from the fact of conquest, and in order to determine the fate of such suspension or acquisition of rights we must refer 583 to the fact of conquest and not to anly prior intention or determination of the conqueror. If these propositions be true, it follows that grants to individuals made after the commencement of hostilities by the original sovereign of lands lying in territory of which he still retains the dominion and ownership rest upon the same foundation as those made before the war. If the title thus conveyed is by municipal i-aw complete and perfect the land becomes private property and must be so regarded by the conqueror. If it be inchoate and imllerfect, but boca fide and equitable, it nevertheless constitutes "property " in the sense in which that term is used in international law. It is true that by the extreme rights of war the conqueror may disregard individual ownership and take private property and convert it to his own use. But such a proceeding, as has already been said, is contrary to modern practice and can not be resorted to except in particular cases and under peculiar circumstances. As neither actual hostilities nor a formal declaration of war can suspend or terminate the sovereignty of the original owner, he retains and may exercise his dominion over every portion of his territory till actual conquest. (Citing Bouvier, Law Dictionary, verb. "Conquest;" Phillimore, On Iet. La'w; vol. iii, ~ 223; Vattel, Droit des Gens, liv. ii, ch. xiii, ~ 197.) ~ 21. But suppose that the vanquished power, while the conqueror is actually taking forcible possession of a part of its territory, should send its agent with the retreating army, and, as the hostile force advances its standard from district to district, should deliver to individual subjects title deeds of the territory at the moment it was about to fall into the possession of the advancing foe, with the evident intention to deprive him of the fruits of his conquest. Must the conqueror recognize such grants as valid; and, if not, how shall he draw the line of distinction between them and other titles issued by the same authority after the commlencement of hostilities and before actual conquest? The want of good faith on the part of such grantees, as well as on the part of the grantor, would deprive them of the rights of bonafide purchasers. The distinction between such titles and those acquired in good faith and granted in good faith, and in the ordinary exercise of the rights of original sovereignty, is abundantly manifest. The fraudulent intent vitiates the entire transaction, and renders the titles mere nullities, and the conqueror, both during military occupation and after complete conquest by the cessation of hostilities, may refuse to recognize them, unless by some expressed treaty stipulation he has agreed to regard them as valid. But it mnust be observed that the same rule applies to grants made prior to the war; if not bona fide, the conqueror is not bound to recognize themn as valid. The fact of the conqueror being in possession of a part of the country, or even of its capital, produces no effect upon the part which remains in the possession of the former sovereign. This question has been discussed in another section. (Citing Mass '. Riddle & Co., 5 Cranch R., 357.) ~ 25. Again, suppose a belligerent should, after a declaration of war, and in anticipation that a particular portion of its territory will necessarily fall into the power of the other party, transfer it to a neutral for the manifest purpose of depriving his eenmy of an opportunity to acquire it by coquest; is the latter bound to recognize the validity of such transfer? Every sovereign and independent State has an undoubted right to alienate any part of its own territory, so long as it retains the ownership and dominion; and other sovereign States have an equal right to acquire such ownership and dominion by any of the modes recognized in international law. But a mere treaty cession of a province or territory by one power to another, can never operate, by itself, as an immediate and complete transfer of the ownership and dominion of the land, or of the allegiance of its inhabitants. To produce such effect a solemn delivery of the possession by the ceding power and an assumption of the dominion and government by that to which the cession is made are indispensable. Until then the territory continues to belong to the original sovereign owner, and its 584 inhabitants reliain the subljects of the power to which their allegiance was due prior to such treaty cession. Such ceded territory is, therefore, still liablle to conqiluest as the territory of the enemy. But suppose the transfer b1e comnpletel lby.a formal (lelivery of the possession to the neutral grantee, and the assumption b)y lilm of the dominion an(l governnent of the ce(ded territor'y? If the transactioi is evi(ldetly m((tlafidle anlld the transfer is ad(le -with the manifest intent to defraud the }belligerent of the rights of conquest, the pretendled ownership of the neutral sovereign will not be recognized by the conqueror. Mloreover, such an attempt on the part of a neutral to hol( territory for the benefit of one of the parties to a \-ar, and in frautl -,f the belligerent rights of the other party, is regarde(l as a violation of neutral (luty, and as an act of hostility toward the party whose rights lie thus attenmpts to defeat. Such transfers of territory by a belligerent to a neutral are mIere nullities, for frauld vitiates the transactions of States as w-ell as of indivilduals. But the general right of neutrals to purchase the prroperty of belligerents,.ftlygrrtoe bello, if the sale b)e tlooat fitde, is universally conce(le(l. The character of each transaction mllust )e decitdedl upon its own merits, andl the determination of the question belongs to the pllitical power of thle State. Although the transfer 1lnay have t)een ma(le with thle evidlent intent to (lefraud the belligerent of the rights to which he is entitled by the laws of \war, nevertheless policy may inlduce him to treat it as a bonafide transaction, rather than involve hiniself in hostilities with the pretended purchaser. (Citing HIeffter, IDroit IltdrtItioirll, ~ 131; Duer, On.Itso,,omlce, vol. i, pp. 437, 438; the " Fama," 5 RJob., 97; the "Johanna Emelia," 29 Fog. La,o; (1 a'(dtty, I., 562; Cushinrg, ()pinions of Alqls. Get.,?ol. vi, 1). 638.) Between August 12, 18!)98 (the date the protocol was signed). and January 1, 18'09 (the date Spain formally withdrew from Cuba), every act of the then government of Cuba (outside of the municipality and possibly the province of Santiago) was done and performed as an exercise of the sovereignty of Spain, just as the grant of this concession was an exercise of the sovereignty of Spain. If it shall now be esta)lished that the right of Spain to exercise the powers of sovereignty in Cuba terminated upon the protocol being signed, the door is opened for complications of a serious character and far-reaching effect. I think it is much better to hold that during this period Spain lllight properly exercise sovereign rights in Cuba for all legitimate purposes of government, and that the grant of a concession is one such legitimate purpose, unless the transaction is tainted with a fraud upon the United States or the people of Cub})a, in whose behalf the United States is acting. The purpose of the lprLotocol of August 12, 1898, wvas to seculre a ceSsation of hostilities until sllch time as a definite treaty of peace could be concluded. With this end in view, the protocol fixed the basis upon which the negotiations for a pe rmanent peace should be conducted. It was an armistice rather than a treaty, created by the war power of the nation and not the treatty-making power, and therefore neither required nor receivedl the approval of the treaty-making power. The thing which the protocol definitely accomplished was to suspend(l hostilities. Therefore said protocol provided: ART. VI. Upon the conclusioni and signing of this lprotocol hostilities between the two countries shall be suspended * *. (30 Stat. L., 1743.) 585 The )lrotocol plainly contemplates that Spanish sovereignlty o-ver -and title to C(u1)a were matters to be dlisposed of 1y, s1iubsequentt actionl of another body, and therefore recites and provides,as follows: Having in view the establishment of peace between thle two ou ntries * * * ART. I. Spaiin will relinquishl all (lailll o)f sovereignty over and title to (uba.. This stipulation of said protoc ol did not hlave the effect of transferring Spanish sovereignty and title: first, because such effect was nlot contemplated; second, Iecause M. Jule{s C~amll)on, allblassador extratordiniar allnd plenipotentiary of the Rel)ptl}lic of France at Wasillinton, was not competent to make the conveyance, anld I-on. William 1. I)tay, Secretary of State for the United States, was not comnpetent to accel)t such conveyance; third, both the Unite(d States and Spain subselquently dealt with the matter in the conference at P>aris as being siubject to the jurisdiction of that b)ody. At the conference in Paris the United States negotiated with Spain for something more than a peace. The United States dealt with Spain as though that Government possessed both sovereignty and property in Cuba, and required Spain to "' withdrlaw" the one and "relinqulish" the other. That the United States considlered the title to pub)lic property in Cuba to be in the Crown of Spain as late as Decemlber, 18938, is shownv by the provisions of the treaty of peace (Paris, 1S98), as follows: ART. 8. * * * Spain relinquislles in Cuba * * * all the )Uildings * * * and other iinmovable property which, in confornlity witi law, }belong to the publlic domlain, and as suchl belong to the Crown of Spain. The United States dealt with Spain, in negotiating the late treaty of peace, as a proprietor, not at pretender, and req(uired Spain to relinquish a title and not simply a clabit, of title. If Spain were 1)ossessed of title to relinquish in December, 18s98, it l)ossessed such title prior thereto and might transfer the sanme if actilng ill good faith. If it be conceled that upon the condition of war prevailing or the protocol b)eing signed Spain ceased to possess the rights of recognized, permanent sovereignty in Cubla, it mlust be adlllitted that Spain mlight exercise the rights of a l)elligerent in s;uch portions of the islald Las were occupied by the Spanish mlilitary forces. lat})ana was so O'CI1 -pied at the time this conrcession was formally issued. The attention of the Secretary is directed to the fact that up1) to this point the purpose of the investigation, both in the first report anlld in this, is to ascertain tile i (At.s {f:Sp' ai and( not to determine the righlts of the concessionnaire. Having reached the conclusion that Spain,/i;Yt have completed the grant of a (concession in Hablana on September 28, 1898, the question arose: Did Spain do so That is to say: Were all the requirements of the Spanish law fulfilled? This was the question which it was thoutght advisalfle to refer to the courts of Ctluba for judicial determination. 586 In order that a case might arise over which the courts of Cuba would have jurisdiction, it was necessary that an overt act should be committed. The commission of such overt act was prevented by the military order' and before such act could be committed, it was necessary to revoke the order. In considering the advisability of such revocation it became necessary to ascertain what, if any, show of authority for the performance of the act was made. Manifestly the act, being in derogation of the rights of others, must be performed under a claim of right and such claim evidenced by something more than mere assertion; otherwise the military government in discharge of the ordinary duties of a policeman or other custodian of the peace could not permit the contemnplated action. To satisfy this requirement the party interested produced a concession, due and regular in form, and upon its face appearing to create and grant the right asserted. This instrument being produced, the inquiry arises: What credence is to be given such apparently completed grant? It will be recalled that Louisiana, New Mexico, and California were Spanish provinces shortly before they passed to the United States, and that East and West Florida passed directly from Spain to the United States. Naturally it was to be expected that this question must have arisen in those territories, and received consideration in our courts. Such is the fact. The United States Supreme Court say: The law presumes the existence in the province (of Spain) of an officer authorized to make valid grants. (Mitchel et al. v. United States, 9 Pet., 715, 760.) The acts of public officers in disposing of public lands, by color or claim of public authority, are evidence thereof until the contrary appears by the showing of those who oppose the title set up under it and deny the power by which it is professed to be granted. Without the recognition of this principle there would be no safety in title papers, and no security for the enjoyment of property under them. It is true that a grant made without authority is void under all governments, but in all the question is on whom the law throws the burden of proof of its existence or nonexistence. A grant is void unless the grantor has the power to make it, but it is not void because the grantee does not prove or produce it. (United States v. Arredondo, 6 Pet., 691, 728.) We have frequently decided that the public acts of public officers, purporting to be exercised in an official capacity, and by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given or subsequently ratified. To adopt a contrary rule would lead to infinite confusion and uncertainty of titles. The presumption arising from the grant itself makes it prima facie evidence of the power of the officer making it, and throws the burden of proof on the party denying it. (United States v. Peralta, 19 How., 343, 347.) Having reached the conclusion that the showing made as to authority for asserting a claim of right to commit the proposed overt act, was sufficient to justify the military government in refraining from exercising the powers of a guardian of the peace and preventing the commission of such overt act, it was necessary to ascertain if the party 587 seeking to commit the act was the party entitled to assert such rights as might be derived from the concession. Upon due consideration the Secretary of War disposed of the several matters involved, over which he thought best to exercise jurisdiction, by directing the military government to deal with said concession on a basis as follows* 1. That the concession to canalize the Matadero River front the Cristina Bridge to the bay of Habana at the Atares Cove, granted by order of Captain-General Blanco, dated September 28, 1898, to Messrs. Manuel CGoiez (le Aranjo and Felipe Pelaez de Amigo, is prima facie a lawful and existing concession conferring rights, privileges, and benefits as therein set forth. 2. That the Habana Canal Company appears to ble the present owner of said concession, and as such is prima facie entitled to exercise the rights and enjoy the privileges and benefits thereby created. 3. That said recognition of such concession as prima frcie lawful and existing shall not be construed as conclusive as to the lawful character of said concession nor as to the fact of its legal existence. Nor shall such recognition prejudice the rights of any person, public or private, which are in any way injuriously affected by said concession or by the exercise of privileges or p1owers claimed under said concession. 4. The courts of Cuba are not bound in any way )by such recognition of said concession as prima facie lawful and existing, but shall in all cases wherein the court las jurisdiction consider questions relating to said concession without reference to said recognition. 5. The exercise of rights claimed under said concession shall be subject to the direction and control of the provisional government in all matters relating to the putllic health and welfare, or other necessity requiring the exercise of the police power of the state. (See letter dated October 5, 1899, to Major-General Brooke.) From the inception of military government in Cuba, the War Department has deferred to the laudable desire of the inhabitants of the island that the affairs of their civil government should be conducted in Cuba and by officials who were on the ground and to whom access could be had. Pursuant to this policy the Secretary of War refrained from making an order removing the injunction imposed by the requirement of the military government that work under said concession should cease, and confined himself to comn unicating instructions, leaving to the military government the performance of such acts as were required to carry out said instructions. In this instance the necessary action was to remove the bar of the order, and thereafter refrain from interfering with the attempt of the concessionnaire to proceed, at his peril, to construct said work. I feel quite sure that if these directions had come into the hands of an American lawyer, practicing his profession in the United States and having in mind the legal procedure of this country and not that of another, he would have easily recognized the purpose of said directions and readily followed the course indicated thereby. But, as already stated, under the Spanish juridical system the usual and ordinary procedure herein would have been to apply directly to the superior authority of the executive branch of the government for 588 recognition of the concession and had the matter sumlll arily disposed of in one way or the other. It is proverblial the world over that lmelmbers of the legal profession are conservative; they respect precedent and hold tenaciously to establslihed forms, practices, and procedures. I can readily understand that Spanisli lawyers and American lawyers who have become familiar with the long-established precedents of the Spanish procedure and are called upon to deal with affairs in Cuba would hardly understand the advisability of adopting an indirect method of ascertaining a legal fact when a direct means was available; or wlhy the Spanish precedents should nlot be followed, since it was* conceded that the militaryI governor had the authority to exercise judicial powers. T o a Spanish lawyer the refusal of an executive officer to exercise judicial )powers is as extraordinary as the exercise of such powers by anl executive officer is to an American. Whenl this case was returned to Cuba the military governor referred the matter to the secretary of public works, Jose R. Villalon, who, viewing' the matter from the Spanish standpoint, arrived at the conclusion that the Secretary of War had exercised judicial powers and had judicially decreed that said concession was lp'l,,tea cie a valid one. Mr. Villalon was further of opinion that the courts of Cuba lacked jurisdiction to pass upon the question of validity and that such jurisdiction belonged to the executive branch of the government of the islands, and more especially to the office of secretary of public works; and thereupon lhe declared the concession valid. From his report the following is quoted (see letter dated Novemenlr 19, 100), I)oc. No. 38): From the opinion of the law office of the Insular Division of the War Departmenlt, which is adopted by the Secretary of War as the opinion of the Department, the Iabana Canal Company is acknowledged the primaJfafcie owner of the concession, and the concession claime(d by it is declared to be primnaflcie a lawful and existing concession conferring the rights, privileges, and benefits as set forth therein. * * * A prima facie right has the force of an undisputed right until declared to be null by the proper authority. The opinion of Judge Magoon, adloted as the opinion of the War Department, is in error in suggesting that tie validity or nullity of the concession can be determined )by the courts of Cuba. nlldoubtedly thle courts of the United States have such power within their jurisdiction, but the Cuban courts werenever given and have not any jurisdiction to qualify a concession as valil or null. The decision lies with the superior authority in each specific instance. *X- * * * * * -*However, I, -wlo unlder the law aNl the lperson to decide the validity of the concession, am not only of the opinion that it is validl, l)ut also that the works prop0)osed are advantageous to ttle public interests, and I recommnend that the petition lbe granted. * * * Secretary Villalon i i in error in attributing the force and effect of a judicial decision to the conclusions reached by the Secretary of War. The conclusions and directions go no further than to advise the officials of the nmilitary government how their discretionary powers are to be 589 exerlised or not exercised ill order thalt the questionl of law inl-olv-ed nmay be judicially determined. This course is identical with that suggested by Attorney-General Griggs JTuly 10, 1899, in the installce of the' Torr Pli concession for a street railway in Habana. IIn that ca:se the Attorney-Gveneral said (22 Op., 520)): The question therefore presentedl is whlether either of these claiiiiants has such a prim( facie vested and regular concess,4ion as; to entitle it to }Ie l)erllittel to procee(l an(I build the railways. (P. 524.) * * * * * * * I think this fact gives to the owners of thle Torre c(oncessioll a prim(l faei(e right to proceed under their concession. (P. 525.) * * * * * * % Upon the whole, I ani of opinion that the rights disclosed bly the owners of the Torre concession are such as entitle thent to le p)erlnittedl, under the permission of the municipal authorities, to proceed with the belleficial work which they (lesire to construct without the injunction of the mnilitary authorities. This will not interfere withI an adjudication in the courts of the ultimate and final rights of the parties. The action of the military authorities in withholding permission to procee(l with the work is tantamount to a preliminary injunction in a court of law. Applying the same principles that would be applied in such a case if it was in a court of equity, I can see no reason why the owners of the Torre concession shoull niot be permitted at their own risk to proceed -with tile work which theyi desire to construct, all I so advise you. (P. 526.) If Secretary Villalon, in saying' that the courts of Cuba " have not any jurisdiction to qualify- a conces-sion as valid or nlull," means that said courts can not pass upoIn a concession which has been declared valid or null by the executive branich of the Gov-erlnlent, or that said courts can not pass upol a c('oncession as an abstract proposition when not involved in an actual (ase )pendillg }before them, I agree with him; but I can not agree that inl the ahbsenlce of a determination b1t the executive b)ranch, and inl a contlroversy actuallx' pending between private parties involving pelrsonal or piroperlty rights. the Courts of Cub'a are without jurisdiction to determline whether or not aI documelnt offered ill e\-idence is o01 is not a valid conc.ession, or1 does oir does not confer a mrighlt.asserted theremunde r. If the instructions of the Secretary of War11 to tle Ililitalry gro-erlior of Culba were to b}e construed tas a judi(cial detelrlinationl of the rights of the concessionllnaire and ddressed to the judicial branch of the govertnmient of C(ubha, the courts nIlight be justified in considering the determllination as })inding uponi thllen; lut the inlstructions related exclusively to the discretion of the executive l1ranch and (expressly reserved( the lmatter of juidi(cial dcterminattion, aInd recited that ''the coturts of Cuba are not b)ound in anty way by such recognition of said concession as ],'[lr tc/ lawful tlid existillg, }}ut shall in all cases wherein the court has jurisdiction consider questions relating to said concession without reference to said recognition." mThe natter beinl' returned to the lllilita'!' governor from the secre 590 tary of public works, with the report that said concession was valid, the military governor on December 6, 1900, referred the case to his administrative council. On March 25, 1901, the council male a report from which is quoted the following: First question: It refers to a problem which this council has studied and solved in an opinion which it had the honor to submit to your consideration in the matter of the concession granted to Mr. Celestino Rovira for the use of a wharf in the port of Manzanillo, and which was claimed, in the capacity of concessionary, by Mr. Jose Mufioz y Plt. It was then sustained, on the merits of a resolution adopted by you, that concessions granted by the Spanish Government, after the protocol of August 12, 1898, was signed between the Kingdom of Spain and the United States of America, should be declared void legally. Your resolution at the time read as follows: This claim is rejected because the concession was granted after the protocol was signed. After this (late no concession could have been legally made. It would be completely useless to repeat here the arguments that were therein used in favor of the thesis sustained by the council. The concessions to Messrs. Pelaez & (;omez, as can be seen from the Gazette of HIabana of the 23d of October, 1898, was granted on the 28th of September of the same year, and as the protocol was signed, as has already been stated, on the 12th of August of said year, 1898, it proves the later (late at which said concession was granted. Second question: As we have above stated, the concession granted to Messrs. Pelaez and Amigo by the general government of the island of Cuba was siglned on the (late we have stated, and had as an object the canalization of the river running between the bridge of " Christina " and the bay of the port toward "Atares; " in other words, the cove bearing this last name. Article 205 of the law relating to water courses reads: " The authorization given to a private company for the canalization of a river for the purpose of making same navigable, or to construct a navigable canal, will alwlays be granted by a law in which it shall always be stipulated whether the work is to be aided with funds of the State; and other conditions of the concession shall be enumerated." The decrees issued by the governor-general of the island, at the suggestion of the secretary of public works, in accordance with the constitution of the government existing in this island at the time that said concession was granted, did not have the nature of a law, and therefore said concession lacks an essential requisite to constitute its validity and is affected by any irregularity which calls forits nullification, and that is: that it was granted by an administrative authority who lacked the necessary faculty to do so. In fact, should it become necessary to declare same void by the reason of the date on which it was granted, later than that on which the protocol of peace between Spain and the United States was signed, and should it be desired to naturally nullify same for the reason given in this second question, the Government would have to appeal to the tribunals of justice instituting the necessary proceedings after declaring that the resolution adopted by the governor-general of the island of Cuba on the 28th of September, 1898, is detrimental. The council las refrained from making a statement of the antecedents which it usually makes in analogous opinions, because it did not have in sight the original records of the civil government to which it has previously referred. It can, however, affirm that the project of Messrs. Pelaez and Gomez was propounded prior to the year 1897, while among the documents which have been examined there are technical reports which favor same. In view of all that has been stated the administrative council recommends that the following conclusions be adopted in the present case: First. That in view of the concession to Messrs. Pelaez and Gomez having been granted later than the signing of the protocol of peace between Spain and the United States, same to be declared without legal validity. Second. That in case that it be not thus 591 decided, the resolution of the General Government, of September 28, 1898, be declared detrimental, and the fiscal be called upon, in representation of the state, to enter an appeal in the usual way and form to obtain before the tribunals of justice the said nullification, for the motives which have been stated. You will, notwithstanding, decide what you deem best. Upon receiving the report of the administrative council, the military governor, on March 26, 1901, forwards the papers to the Secretary of War, with the following communication: MARCH 26. 1901. The AI)IUTANT-GENERAL UNITED STATES ARMY, WTashington, D. C. SIR: The within documents relative to the canalization of the Matadero Creek are respectfully forwarded for the consideration of the Secretary of War. Attention is invited to the report of the administrative council on the law in this case, and also to my letter of recent date on this same subject. I expressed in that letter opinion that the report of the council would be favorable as to the validity of the concession. It would seem, however, that their final conclusion is adverse. However, I am still of the same opinion as that expressed in my letter in all that pertains to the validity of the concession. I believe that inasmuch as all the principal steps in this cnclession were apparently taken and completed in good faith prior to the signing of the protocol, the decision of Governor-General Blanco should be confirllel by thle present military governor of the island. Inasmuch, however, as the War Department has already expressed opinion in this case, these papers are forwarded for reexamination, with request that I be informed as to whether the Department is still of the same opinion as that set forth in the original report of Judge Aagoon. Very respectfully, LEONARD W001D),,lTajor- (;eueral, Military (ioccrnor. The first question reported on by the administrative council appears to the writer hereof as one of administrative policy, and one which it is eminently proper should be determined in Washington. It clearly relates to the respective and relative rights of Spain and the United States resulting from, or as affected by, a war between these nations. The subject has been discussed hereinbefore as fully as the writer feels justified in doing under the limitations imposed on the discussion of such questions. The second question, i. e., whether said concession could be granted lawfully except by special law of the Spanish Cortes, is a question of law, and its examination shows the necessity of referring this matter to the courts, and also the authority of the courts to pass upon it. If it were necessary to have said concession authorized by a special law of the Cortes, and no such law was enacted, then the instrument upon which the concessionnaire relies has no more legal effect than blank paper, and is binding upon no one, especially the courts, and if offered in evidence in court, in order to justify an overt act in derogation of the rights of others, the question of its competency as evidence and the legal effect of its provisions would properly come within the juris 592 diction of the court, and thereupon its validity or want of validity could be judicially determined. Whether or not it was necessary for this concession to be authorized lby special law was considered at the time the Spanish officials were conducting the proceedings leading up to the grant. The controversy turned on the question as to whether or not the provisions of article 205 of the Spanish laws of waters controlled the application. Said section provides as follows: ART. 205. The authority to an association or company to canalize a river for the purpose of making it navigable, or to establish a navigation canal, shall always be granted by means of a law in which there shall be determined whether the work is to be assisted by the funds of the State, and including the other conditions of the concession. The board of provisional deputies held that this section applied. The board of agriculture, industry, and commerce held that said section did not apply, and the proceedings were to be had as provided for in the harbor laws, since the Matadero Creek was an arm of the sea and affected by the tides; that article 205 of the laws of waters applied only to interior streams, not affected by the tides of the sea. This contention was sustained by the Spanish chief of engineers in his report of September 16, 1897 (see Doc. 20, p. 10), wherein it is stated that the grant is to be made by the minister of colonies, under the authority conferred by article 44 of the harbor law. Said article provides as follows: It pertains to the minister of the colonies to grant authorization * * * for the construction on the sea or beaches and adjoining lands, or in the harbors, whether for private or public use, of such * * * works as are complementary and auxiliary to those existing for the use or service of a port. The superior authority of the island evidently considered that article 205 did not apply to this grant, for the concession was issued without the authority of a special law. The administrative council, as already appears, is of opinion that said article did apply, while Secretary Villalon is of opinion that the concession is valid. It seems advisable, if not indispensable, that a legal question so difficult of solution as to give rise to such diametrically opposite conclusions should be thrashed out in the courts. With further reference to this question, the attention of the Secretarv is directed to the royal decree, dated November 25, 1897, providing for autonomous government in Cuba. The parties seeking to exercise rights under this concession insist (1) that by the provisions of article 44 of said decree the powers theretofore exercised in Cuban affairs by the Spanish minister of colonies passed to the governorgeneral of Cuba; (2) that the legislative authority of the Spanish Cortes over local matters and affairs in Cuba passed to a prospective insular legislature whose creation was lauthorized by said decree; 593 (3) pending the organization of said legislature the legislative authority of the island was to be exercised by the governor-general of the island and his board of secretaries; (4) that said concession having been issued while the governor-general and his secretaries lawfully exercised such power, the concession must be held to have received legislative sanction, if such sanction is required by the law. Whether or not such is the effect of the Spanish royal decree appears to the writer to be a proper question for the courts of Cuba to consider and determine when such question is involved in an action pending in said courts between litigants asserting conflicting personal or property rights. Respecting the situation existing herein, I continue to entertain the belief that the proper course for the military government to pursue is that recommended by the Attorney-General in the instance of the Torre Pla concession; that is — 1. To withdraw the interdict stopping said work. 2. If the Habana Canal Company attempt to exercise rights under said concession, and any party considers such exercise prejudicial to his rights and appeals to the lnilitary government for protection of said rights, that such party be referred to the courts maintained by the military government for such purposes. 3. That the administrative policy of the United States respecting the exercise of sovereign rights in Habana by Spain during the time elapsing between the signing of the protocol of August 12, 1898, and the evacuation of Habana by the Spanish forces is that exercise of sovereign rights by Spain during said period are to be considered as the acts of a (le facto sovereign government and of such force and effect as are accorded such acts by the laws in force in that territory at the time the acts were done and performed; 1)rovided, such exercise of sovereign rights was in good faith and without intent to perpetrate a fraud upon the existing or prospective rights of the United States. While this report was being written, the War Department received a copy of Order No. 95, Headquarters Department of Cuba, dated April 10, 1901, providing for a reorganization of the supreme court of Cuba. I have examined said order to ascertain if it affords a means of properly and finally disposing of the matter now under consideration, and do not think it does. Said order provides for an adlninistrative chamber which " shall take cognizance of all matters * * * which the laws at present in force assign to the chamber of the court for the administration of justice in administrative matters (contencioso-administrativos). " If I correctly understand the proceeding known as "contenciosoadministrativo," it is in the nature of an appeal to a branch of the judiciary from a decision rendered by an official of the administrative or executive branch of the government. If so, it is necessary for the 1394- 03 38 594 executive branch to render a decision in order that the appeal may be taken. The questions involved which the courts of Cuba may properly consider are questions of law which the officials of the administrative branch may not properly determine, and in the absence of a decision thereon bythe administrative branch the administrative chamber of the supreme court of Cuba could not acquire jurisdiction. The question as to what extent the United States will recognize the exercise of sovereign rights in Cuba by Spain after the two nations had entered into the agreement of August 12, 1898, is a matter between those two sovereign nations. What position shall be assumed and what policy pursued by the United States in regard thereto is not to be determined by the courts of Cuba. When determined and announced by the conpetent authority of the United States, it is to be respected and carried out by all branches of the government of Cuba, and is not subject to review or modification by the judicial procedure known as "contencioso-administrativo." The Secretary of War approved the views expressed in the foregoing report, and advised the military governor of Cuba as follows: MAY 29, 1901. SIR: A report by the law officer of the Division of Insular Affairs in the matter of the concession to canalize the Matadero River is inclosed herewith, bearing my approval. It is evident that some confusion has existed in the treatment of such subjects in Washington and Habana, arising from the widely different systems of law and judicial procedure, which form the point of departure for opinions and decisions rendered in the two places. The same terms used in the different places sometimes carry widely different meanings. The principle to which the Department has endeavored to adhere, and which was definitely determined upon at the beginning of your admlinistration of Cuba, is that such decisions as the Department makes upon questions of this character will be limited to decisions for the purpose of guiding administrative action, and that the Department will not undertake to perform the functions of a court to determine the rights of individuals. The decision made in the Matadero Canal case on the 5th of October, 1899, was of this description. It was not designed to determine the rights of the persons claiming the concession, but to determine the duties of the military administration of Cuba in its administrative treatment of that concession, and the fourth clause of that decision was supposed to adequately express that limitation. The secretary of public works apparently gave to the decision that the concessionnaires had a prima facie right a much more extended and unwarranted force when he declared that the prima facie right had the force of an undisputed right until d(eclared to be mdll by the proper kuthority. The decision made by the War Department gave no force or effect whatever to the concession when presented to a court, relieved the concessionnaires from no burden of establishing their rights in court, and had no effect whatever except as governing the action of the administrative officers of the military government. It required that you should withdraw the prohibition which your predecessor had established by military order against the exercise of whatever rights the concessionnaires may have had, leaving the concessionnaires to prosecute their rights precisely as if that military order had never been given. That course should be followed now. The withdrawal of that order will not, however, prevent the military government from disputing in any court of competent jurisdiction the validity of the concession, either as colplainant or as defendant, just as any individual whose rights may be affected may dispute it, and in any such proceeding the claimants of rights under the concession will be bound to establislh their rights precisely as if no such decision had been made; nor does this decision, or the withdrawal of the prohibitory order under it, prevent the taking of tile custoinary proceeding, in case the concession should be held to be valid, for its annulment upon the ground that it is detrimental to the public interests. Tliere is one matter upon which the decision of the Department, however, is conclusive, and which is not deemed to be open for determination by any court, and that is upon the power of the Spanish Government to grant such a concession on the 28th of August, 1898. That is a political, not a judicial, question, and the view taken by the I)epartment is that the date itself is not conclusive. Each such case must be considered by itself on its own merits. Acts of Spain in Cuba between the signing of the protocol and the evacuation, done in good'faith and in the ordinary exercise of governmental powers, are to be treated as the valid acts of a government de facto, while acts done for the purpose of withdrawing or withholding property or valuable rights from the government about to succeed, and not done in good faith for the legitimate purposes of government, are to be treated as invalid. Very respectfully, ELIHu ROOT, Secretary of Tar. Maj. Gen. LEONARD WOOD, Military Governor of Cuba, Ilabana, Cuba. THE GRANT OF FRANCHISES BY SPANISH OFFICIALS IN CUBA AFTER THE SIGNING OF THE PROTOCOL OF AUGUST 12, 1898. [Submitted June 19, 1901. Case No. 771, l)ivision of Insular Affairs, War Department.] SIR: I have the honor to acknowledge the receipt by reference of a communication on the above-entitled subject, addressed to the Secretary of War by the military governor of Cuba, under date of June 5, 1901, which letter is referred to me "for remark." In response thereto I have the further honor to submit the following: There is no doubt in my mind that the United States is justified in reviewing such exercises of sovereign authority by Spain in Cuba as took place after Congress passed the resolution of April 20, 1898, calling upon Spain to withdraw from the island. But I do not believe that in making such review the United States is at liberty to adopt the hard and fast rule that all exercises of sovereign authority by Spain in Cuba after a given date, other than the date on which the transfer of sovereignty was effected, are to be considered null and void. To adopt such a rule is to declare null and void each and every official act of all officials in all branches of the government of Cuba by Spain during the designated period, for each official of that government acted pursuant to authority derived from Spanish sovereignty and as the agent or instrument of that sovereignty. 596 I think it must be conceded that the ordinary exercise of governmental powers by Spain in Cuba during the interim between the protocol of August 12, 1898, and the evacuation, January 1, 1899, is to be treated as valid. Such of the acts resulting from such exercise as may be termed public or political were properly subject to modification or repeal by the United States when that Government entered into possession of the territory and assumed the exercise of sovereignty. But such of said acts as created rights of property and conveyed them to individuals or associations are not subject to such unlimited discretion. It does not follow that these grants must all be recognized without question, but I do not think they are subject to the arbitrary approval or disapproval of the military government, nor to the test of any date preceding that of the treaty of peace, whereby the rights of Spain in Cuba were "relinquished."' If the Crown of Spain possessed the proprietary title to property in Cuba, it could exercise the ordinary right of alienation and convey such of said property as remained in its possession during the progress of the war. As between belligerent nations, the test of ownership and its appurtenant privileges is posession; and the test of the exercise by belligerents of the privileges appurtenant to ownership and possession is good faith toward its adversary. This is the rule as to property actually existing prior to the grant, such as real estate or personalty. Sovereignty may properly exercise its powers in such a way as to create property or property rights as a result of such exercise; as by the grant of patents, copyrights, franchises, and exclusive privileges. Such exercise of sovereign powers by a nation at war is to be tested in the same way as conveyances of property in esse. If the territorial limits of the grant are confined to territory within the possession and sovereignty of the sovereign making the grant or conferring the privilege, the exercise is thereafter to be tested by the food faith of the parties. It is impossible to say what evidence is sufficient to show good faith, or the want of it, in any or all cases. The question must be determined by the facts appearing in each case as it arises. Take, for instance, the grant of a patent by registration in a provincial registry of Cuba prior to December 10, 1898. Such property rights as were thereby conferred by the sovereignty of Spain would be recognized and protected by the present government of Cuba, although it would be an instance of the expelled sovereignty projecting its authority into that of the new government. But suppose that, in addition to granting the exclusive right to manufacture the patented article, the letters patent provided that for a period of fifty years the materials used in manufacturing said article should be admitted free of duty. Such provision might be binding upon Spain while it continued in possession of Cuba, but would not be binding upon the new government, because such attempted extension of sovereignty and con 597 tinued exercise of sovereign power in that territory would be judged malacfides when tested by the rights of the United States. The Crown of Spain had the right to convey real estate to which it had proprietary title and of which it was in possession up to the date of the treaty of peace. But suppose it had conveyed the forts commanding HIabana harbor to an individual. The United States would not be required to respect such conveyance. The Crown of Spain had the right to authorize the construction of a dam across the Matadero Creek in Habana. But suppose the purpose and effect of its construction were to cut off a portion of the city from marine commerce and to flood a large section of country. Such concession would justly be held to lack the element of good faith. On the other hand, suppose Spain, in order to secure food for the troops in Habana, had purchased in September, 1898, a quantity of flour from Ia merchant in Habana, and in payment conveyed to him a vacant lot or parcel of land in Habana of which the Crown of Spain had proprietary title and which was worth no more than the flour. Would the United States be at liberty to ignore the rights of the merchant because of the date of the conveyance? The question of good faith is one which arises between the United States and Spain. It relates ex clusizvly to the relative and respective rights of these two nations as they were affected by the events of the war. The United States, being the victor, is in a position to decide for itself whether or not its adversary acted in good faith. It is not a question for the courts to determine. It is ilnterinational, and courts are without jurisdiction. It is to be resolved by the authorities charged with the maintenance of the rights of the United States in Cuba and with carrying out the purposes of the United States with regard to that island. It appears very clear to me that the powers of determination possessed by these authorities, exercised with judgment and regard for the recognized powers of national sovereignty, will afford ample protection to the interests of the United States and Cuba, and at the same time "discharge the obligations that may, under international law, result from the fact of its (Cuba's) occupation for the protection of life and property" (Art. I, treaty of peace), and likewise carry out the provision of the treaty "that the relinquishment or cession * * * can not in any respect impair the property or rights which, by law, belong to the peaceful possession of property of all kinds " (Art. VIII). I note that in the letter under consideration the military governor says: The opinion here has been that the authority of the Spanish Government, from the signing of the protocol up to the date of completion of evacuation, did not, under the circumstances existing, authorize that Government to grant concessions conveying property or valuable rights or privileges; that it was, in fact, simply in police control of the territory pending its occupation by the victorious enemy. I believe that such is the only safe basis to proceed upon; otherwise we shall have trouble for years 598 over concessions granted by Spanish officials during that period. It would seem, inasmuch as all these grants involved property or valuable rights blelonging to the future government of Cuba, that their transfer by the Spanish Government at that time was unauthorized. These remarks do not, of course, apply to any administrative measures, measures of a sanitary character, or those taken on the ground of public necessity, but only to such acts as resulted inl the transfer qf property of the State or concessions or privileges of value, to grant 0which involled the rights of sovereignty, and!which were not necessary as an administrative measure. I italicize the concluding paragraph of the foregoing quotation in order to direct attention to the fact that the military governor recognizes the necessity of admitting that Spain properly exercised sovereign powers in Cuba, during the period under consideration, for the purposes designated in said paragraph. By reference to the protocol of August, 1898, it will be seen that said protocol made no exception and did not undertake to preserve to Spain the authority necessarily exercised in measures to which the military governor refers. If the protocol put an end to Spain's right to exercise sovereign powers in Cuba, it ended the right for all purposes. I am of the opinion that the military government of Cuba is not at liberty to adopt the rule "that the authority of the Spanish Government, from the signing of the protocol up to the date of completion of evacuation, did not, under the circumstances existing, authorize that Government to grant concessions conveying property or valuable rights or privileges; that it was, in fact, simply in police control of the territory pending its occupation by the victorious enemy." Such is not the rule of international law. (Halleck's Int. Law, 3 ed., vol. 2, chap. 33, sees. 23, 24, 25.) Such is not the position taken by the United States at the peace conference in Paris. At that time the United States dealt with Spain as being possessed of both sovereign and proprietary rights in Cuba, and required Spain to relinquish both. Such is not the theory formulated in the treaty of peace. By that instrument the United States recognized the right of Spain to convey both sovereignty and proprietary title in Cuba. Such is not the rule adopted by the President of the United States in this matter. It will be recalled that during the proceedings of the mixed commission to arrange the terms of the evacuation of Cuba the American commissioners learned that the Spanish officials were granting franchises and selling government property, and thereupon reported the facts to the President, who called upon the Spanish governor-general of Cuba to prevent further grants of such character. If the President had been of the opinion that the action of the Spanish authorities was null and void, because taken after the protocol was signed, he 599 would hardly have added to the complications then existing by presenting an unnecessary demand. To now declare that as to Cuba after August 12, 1898, Spain was "simply in police control of the territory pending its occupation by the victorious enemy" is to take the position that at that date the United States had effected the complete conquest of Cuba and that the rights of the United States are based on that conquest. My understanding is that the position taken by the Administration is that the rights of the United States in Cuba are based upon the treaty of Paris (December 10, 1898), and not on conquest. Complete conquest, sufficient to transfer sovereign and proprietary rights, imposes obligations and liabilities which the United States avoided by the treaty of peace. From the foregoing it follows that xwhen a claim is made that the Spanish Government granted a franchise or conveyed property in Cuba while the condition of war existed there or after the protocol of August 12, 1898, was signed, the first question to be determined is, Was the grant by the Government of Spain in fraud upon the rights of the United States? This question is to be determined by the authorities of the United States charged with maintaining the rights and promoting the purposes of the United States in Cuba. Each case must be adjudged on its own merits and the question resolved by consideration of the facts, circumstances, and conditions involved in the transaction. Each case is a bridge which can not be crossed until reached. If it should be determined that the grant is void for want of bona fides or because it violates the rights of the United States, such determlination should be declared and an order issued prohibiting the exercise of rights under said grant. This would end that particular case. If it should be determined that the grant was not void as against the rights of the United States, it is not necessary for the United States authorities to declare such determination, and they should not do so. By refraining from making such declaration the executive department enables the courts of Cuba to determine the questions of procedure and authority of the officials under Spanish law. It does not follow that because Spain could have granted the concession that therefore Spain lid grant it. The Government of Spain is a constitutional monarchy, and the validity of a concession may involve a constitutional question. The grant of franchises or concessions which the Government was authorized to make was regulated by law and required to be accomplished by following a procedure established by law. In every case the validity of a concession would involve the question of whether or not the grant had been made pursuant to these Spanish laws. I doubt not that this question may be judicially determined by the 600 executive branch of the military government of Cuba if it sees fit to exercise the power, and that such determination of the question by the executive branch would be binding upon the courts of Cuba; but I understand the administrative policy adopted by the War Department for the military government of Cuba to be, that the executive branch of the military government of Cuba is to refrain, whenever possible, from judicially determining such questions and relegate them to the courts. Therefore the officials of the executive branch of the military government of Cuba ought not to ratify or approve any of the grants or concessions heretofore issued by Spanish authority in the island, for to do so is to bind the courts to sustain the ratification. The executive branch of the military government will continue, of course, to exercise the police power and prevent the violation of the rights of others by those whose claims of authority are not supported by sufficient showing to make out a priila facie case, and will take such steps as are necessary to protect the public welfare in all latters subject to the control of the police power of the government. In short, when the military government of Cuba is of opinion that a particular grant, if otherwise valid, is not in violation df the rights of the United States as existing at the time the grant was made by the Spanish authorities, the executive branch of the military government will take no action in regard thereto, except to regulate the manner of exercising the rights asserted under the concession, by the ordinary exercise of the police power, and thereby leave open the questions of law involved for the determination of the courts. When the military government of Cuba is of opinion that an alleged grant purporting to have been made by the authority of Spanish sovereignty is in fraud of the rights of the United States as they existed at the time the grant was attempted, the military government will prohibit the exercise of rights under said alleged grant. In his letter of June 5, 1901, the military governor of Cuba, having reference to the Spanish concession for the canalization of Matadero Creek and in response to the letter of instruction from the Secretary of War, dated May 29, 1901, says: The point at issue was whether or not the War Department was willing that I should confirm the approval of the former goternor-general. * * * I understand from the general tenor of your letter that such approval is agreeable to the War Department. * * * In accordance with your general instructions, and having considered the case upon its own merits, I will indorse upon it my acceptance of it as a valid concession. The letter of the Secretary of War to which the military governor refers is as follows: MAY 29, 1901. SIR: A report by the law officer of the division of insular affairs, in the matter of the concession to canalize the Matadero River, is inclosed herewith, bearing my approval. 601 It is evident that some confusion has existed in the treatment of such subjects in Washington and Habana, arising from the widely different systems of law and judicial procedure which form the point of departure for opinions and decisions rendered in the two places. The samne terms used in the different places sometimes carry widely different meanings. The principle to which the Department has endeavored to adhere, and which was definitely determined upon at the beginning of your administration of Cuba, is that such decisions as the Department makes upon questions of this character will be limited to decisions for the purpose of guiding administrative action, and that the Department will not undertake to perform the functions of a court to determine the rights of individuals. The decision made in the Matadero Canal case on the 5th of October, 1899, was of this description. It was not designed to determine the rights of the persons claiming the concession, but to determine the duties of the military administration of Cuba in its administrative treatment of that concession; and the fourth clause of that decision was supposed to adequately express that limitation. The secretary of public works apparently gave to the decision that the concessionnaires had a primla facie right a much more extended and unwarranted force when he declared that the prima facie right had the force of an undisputed right until declared to be mnll by the proper authority. The decision made by the War Department gave no force or effect whatever to the concession when presented to a court, relieved the concessionnaires from no burden of establishing their rights in.court, and had no effect whatever except as governing the action of the administrative officers of the military government. It required that you should withdraw the prohibition which your predecessor had established by military order against the exercise of whatever rights the concessionnaires may have had, leaving the concessionnaires to prosecute their rights precisely as if that military order had never been given. That course should be followed now. The withdrawal of that order will not, however, prevent the military government from disputing in any court of competent jurisdiction the validity of the concession, either as complainant or as defendant, just as any individual whose rights may be affected may dispute it, and in any such proceeding the claimants of rights under the concession will be bound to establish their rights precisely as if no such decision had been made; nor does this decision, or the withdrawal of the prohibitory order und(er it, prevent the taking of the customary proceeding, in case the concession should be held to be valid, for its annulment upon the group that it is detrimental to the public interests. There is one matter upon which the decision of the Department, however, is conclusive, and which is not deemed to be open for determination by any court, and that is upon the power of the Spanish Government to grant such a concession on the 28th of August, 1898. That is a political, not a judicial question, and the view taken by the Department is that the date itself is not conclusive. Each such case must be considered by itself on its own merits. Acts of Spain in Cuba between the signing of the protocol and the evacuation, done in good faith and in the ordinary exercise of governmental powers, are to be treated as the valid acts of a government de facto, while acts done for the purpose of withdrawing or witholding property or valuable rights from the Government about to succeed, and not done in good faith for the legitimate purposes of government, are to be treated as invalid. Very respectfully, ELIHU ROOT, Secretary of (War. Maj. Gen. LEONARD WOOD, Military Governor of Cuba, Habana, Cuba. It appears to the writer that the military governor has misinterpreted the instructions set forth in the foregoing letter. He was instructed to withdraw the military order of the military officer preceding him in command of the division of Cuba; further affirmative 602 action by him does not seem to have been contemplated. If he shall now "confirm the approval of the former governor-general'" and "indorse upon it my acceptance of it as a valid concession" such action will preclude the courts of Cuba from determining whether the Spanish official who issued the concession was authorized to make the grant by Sypani8,h law, or, if so authorized, whether or not the proceedings taken fulfilled the requirements of the Spanish law. I think the proper indorsement for the military governor of Cuba to make on the concession to canalize Matadero Creek, and on other concessions which the United States considers as not invalidated by want of good faith on the part of Spain, would be as follows: The United States makes no objection to this alleged grant by Spain nor to the terms and conditions thereof (insert description), provided said alleged grant was made pursuant to lawful authority and procedure under the laws of Spain in force in the territory to which the concession appertains at the time the grant was made. The questions of authority and procedure under Spanish law are to be determined by the courts of Cuba when involved in cases properly pending therein. When the United States does object to a concession as invalid for want of good faith, a proper indorsement would be as follows: The United States objects to this alleged grant by Spain (insert description) and refuses to recognize the same as valid. Therefore the military government of Cuba prohibits the assertion or exercise of any rights or privileges thereunder. The Secretary of War approved the views expressed in the foregoing report and instructed the military governor of Cuba as follows: WAR DEPARTMENT, OFFICE OF THE SECRETARY, DIVISION OF INSULAR AFFAIRS, Washington, D. C., Junle 21, 1901. SIR: I have the honor to acknowledge receipt of your communication of June 5, 1901, respecting the concession for canalization of Matadero Creek, Habana, and requesting further explanation of theadministrative policy adopted by the War Departnient with reference to alleged concessions granted by the Spanish government of Cuba, after the protocol of August 12, 1898, was signed. In answer thereto allow me to say: The United States, on August 12, 1898, by reason of successful military operations, had induced Spain to sue for peace and was in a position to require Spain to comply with its demands. But the United States had not effected a complete conquest of all Cuba, because all parts of the island were not in the possession of our military forces. Under the laws of war, as long as Spain continued in possession of territory in Cuba, so long Spanish sovereignty continued over that particular territory, and the proprietary title in and to public property therein situate belonging to the Crown under Spanish law would remain with the Crown of Spain. While this condition continued, the Government of Spain would be justified in exercising sovereign powers in said territory, and the Crown of Spain would be justified in exercising the ordinary privileges appurtenant to the proprietary title of public property under the laws of Spain, provided such action as was taken was in good faith, i. e., with due regard to the rights of its adversary. 603 This condition was termlinated by the treaty of Paris. By that instrument sovereignty and title il Cuba (art. 1) and proprietary title to thle public property in the island (art. 8) were relinquishedl by Spain, and provision made that " upon its evacuation by Spain" the island was to be ",ccupied by the United States," and that the United States should " so long as such ocupaltion shall last assume anit discharge the ol)ligations that may lnder international law result from the fact of its occupation.' * * * (Art. 1.) Tlhe right of the United States to admlillister sovereign powers in Cuba, and its right to the proprietary title of lul)lic property theretofore possssesed by tle Crown of Spain, were completed by anl d(late froln tlhe treaty of Paris, I)Deceber 10, 1898. It is therefore inaccurate to say "all these grants involved property or valuablle rights belohging to the ftture gorermel)t (Cf tCba." When attempt is made to exercise rights luner an alleged concession purporting to have been granted by officials of the Spanish government of Cuba, after the signing of the protocol of August 12, 1898, the military government of Cuba is required to consider the matter in two phases, the first beingWas said grant justified by the laws of war? That is to say: (a) Was Spain in possession of the territory affected? (b) Was the sovereignty of Spain attached thereto? (c) Did Spain act in good faith toward its adversary? The second phase isWas said grant justified by the laws of Spain? That is to say: (a) Was the grant authorized by the laws of Spain? (b) Were the requirements of the Spanish law fulfilled in making said grant? The first phase is to be passed upon alnd the questions involved determined by the authorities charged with maintaining the rights and promoting the purposes of the United States in Cuba, for the reason that said questions involve the relative and respective rights of the United States and Spain as affected by a war in which the United States was the victor. In matters of this character the official so charged is the military governor. The second phase is to be passed upon and the questions involved determined by the judicial branch of the military government of Cuba, for the reason that the dletermination of said questions requires the exercise of judicial functions ordinarily performed by courts, and the administrative policy in Cuba is to permit the courts to perform those functions of government termed judicial. In determining the questions properly to be considered by himl, the military governor should exercise care not to preclude the possibility of the courts examining and determining the questions involved in the second phase. Where the military governor determines in favor of a concession the deterlinhation shoulld be declared as follows: "The United States makes no objection to this alleged grant by Spain, nor to the terms and conditions thereof (insert description); provided said alleged grant was made pursuant to lawful authority aind procedure under tile laws of Spain in force in the territory to which the concession a)ppertains at the time the grant was made. The questions of authority and1 procedure under Spanish law are to be determined by the courts of Cuba when involved in cases properl petnding therein." When the determination is against a concession it should be declared as follows: " Tle United States objects to tllis alleged grant by Spain (insert description), and refuses to recognize the same as valid. Therefore the military government of Cuba prohibits the assertion or exercise of any rights or privileges thereunder,' Yours, respectfully, ELIHU RooT, Secretary of War. Maj. Gen. LEONARD WOOI), Militar!y ('orerlnor. 604 CONSTRUCTION TO BE GIVEN THE CONGRESSIONAL ENACTMENT APPROVED MARCH 2, 1901, RELATING TO THE PUBLIC LANDS AND TIMBER IN THE PHILIPPINES. [Submitted March 15, 1901. Printed as War Department publication by order of the Secretary of War. Inserted in Annual Report of Secretary of War, 1901, as Appendix F. See also pp. 70-71 of said report.] [Case No. 1991, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge the receipt of your request for a report on the proper construction of the provision in the Army appropriation bill, approved March 2, 1901 (Public No. 118)That no sale or lease or other disposition of the public lands or the timber thereon or the mining rights therein shall be made. The particular subject calling for consideration is the effect of this Congressional enactment upon the right of the United States governmental authorities in the Philippines to provide for the use of forest products in the public forests of the Philippine Islands by the residents of the archipelago and by the Government. The question is presented to the War Department by the following cablegram from the Philippine Colmmission: MANILA, lar.tch 7, 1901-6.5,5 at. rn. ROOT,,Secret(ry of Tir, Jioshoingtgon: High price lumber one of people's greatest burdens; present situation very little timber on private land; people almost entirely are obliged to depend upon purchase timber from Government land to repair damage owing to the war. If recent legislation abrogates General Orders, Headquarters Department of Military Governor, series of last year, No. 92, fixing reasonable rates and proper limitations under which any resident may cut public timber, it will produce greatest hardship. If so, ask authority to put imported timber on free list. Is cutting public timber for public works forbidden? Request opinion. TAFT. To properly understand said provision it is necessary to consider the entire paragraph of which it is a portion and the general purpose of the legislation. Said paragraph is as follows: All military, civil, and judicial powers necessary to govern the Philippine Islands, acquired from Spain by the treaties concluded at Paris on the tenth day of December, eighteen hundred and ninety-eight, and at Washington on the seventh day of November, nineteen hundred, shall, until otherwise provided by Congress, be vested in such person and persons and shall be exercised in such manner as the President of the United States shall direct, for the establishment of civil government and for maintaining and protecting the inhabitants of said islands in the free enjoyment of their liberty, property, and religion: Provided, That all franchises granted under the authority hereof shall contain a reservation of the right to alter, amend, or repeal the same. Until a permanent government shall have been established in said archipelago full reports shall be made to Congress on or before the first day of each regular session of all legislative acts and proceedings of the temporary government insti 605 tuted under the provisions hereof; and full reports of the acts and doings of said government, and as to the condition of the archipelago and of its people, shall be made to the President, including all information which may be useful to the Congress in providing for a more permanent government: Provided, That no sale or lease or other disposition of the public lands or tile timber thereon or the mining rights therein shall be made: And prorided furtlher, That no franchise shall be granted which is not approved by the President of the lUnited States, and is not in his judgment clearly necessary for the immediate government of the islands and indispensable for the interest of the people thereof, and which can not without great public mischief, be postponed until the establishment of permnanent civil government; and all such franchises shall terminate one year after the establishment of such permanent civil government. To understand the purpose and extent of this legislation it is necessary to consider the conditions with which Congress was called upon to deal. The Taft Philippine Commission, in its report to the Secretary of War dated November 30, 1900, says (pp. 54-57): The timber of the Philippine Archipelago forms one of its most important natural sources of wealth. The timber-producing trees have been classified in order of their commercial value as follows: Superior group, 12 species; first group, 17 species; second group, 49 species; third group, 74 species; fourth group, 200 species; fifth group, 33 species; total species, 385. It is certain that there still remain more than fifty species not yet classified. Included in this list are very hard woods capable of taking a beautiful polish; woods that resist climatic influences and are proof against the attacks of white ants; woods especially suited to use for sea piling on account of their imperviousness to the attacks of Teredo vavalis, or for railroad ties, because they last extremely well when placed in the ground; in'short, there are woods for every imaginable use. There is a great variety of trees yielding valuable gums, and rubber and guttapercha are abundant in Mindanao and Tawi-Tawi. At least 17 dyewoods are produced within the limits of the archipelago, while other trees yield valuable essential oils or drugs. It has been estimated by tile present head of the forestry bureau from such data as lie has been able to secure that there are not less than 40,000,000 acres of forest lands in the archipelago. Under the Spanish administration a force of 66 expert foresters and 64 rangers, with 40 other subordinates, such as clerks, draftsmen, etc., formed the personnel of the forestry department. The service was organized in 1863, and throughout its history the higher officials were selected from the Spanish corps of engineers. No Filipino was permitted to hold any of the more important positions. In addition to the care of the forests, the department had in charge the survey of all public lands. The annual income during the last years of the Spanish re'gime was approximately $150,000 (Mexican). The present forestry bureau was organized on the 14th of April, 1900, under General Orders, No. 50, which placed Capt. Geo. P. Ahern, Ninth United States Infantry, in charge, making no specifications whatever as to his duties. He received authority to employ 4 foresters, 2 rangers, a stenographer, and a translator. This force was gradually increased until on the 18th of September it consisted of a translator, a stenographer, a chief assistant, 7 assistant foresters, I head ranger, and 13 rangers. On July 1 regulations prepared by the forestry bureau and governing the utilization of the forest products of state lands were published as General Orders, No. 92. These regulations were based on those in force under Spanish sovereignty, but the latter were somewhat condensed and a few changes were introduced. The old blank 606 forms were kept and additional ones provided for. Under tle new rules the prices per cubic foot charged by tile Government for timber cut on public lands are as follows: Superior group, 7 cents; first group, 5 cents; second group, 4 cents; third group, 12 cents; fourth group, 1 cent; fifth group, c cent (United States currency). There are given lists of the trees of the several groups, with their comlnion names and their scientific names, so far as thle latter have been ascertained, together with rules governing the cutting and measuring of timber and the payment of the charges thereon, as well as provisions as to how the various gums shall be gathered. It seemed extremely important that an order allowing the cutting of timber should be put into force at the earliest possible time, as there was practically a lumber falline at Manila and other important points in the archipelago, while the destructionl of buildings incident to the war and the increased demand for good dwelling houses, resulting from the large influx of Americans, made it imperative that provisions should be made so that felling of trees and marketing of luniber mighlt lawfully begin. The regulations were therefore necessarily somewhat hastily compiled by those having the work in charge. The Commission is now able to profit by tlhe practical results obtained through putting them into force, and is of the opinion that tile clerical work connected with the cutting and marketing of timber can be simplified considerably witl profit to all concerned. It seems probable that the rates charged, which are greatly in excess of those charged under the Spanish tariff, should be somewhat reduced. The -whole matter will be made the subject of careful investigation and legislative action in the near future. Early in September the Commission investigated the affairs of the forestry bureau and learned that no attempt had been made to enforce the forestry regulations outside tle island of Luzon, even in such great commercial centers as Iloilo and (elbl. With a view to the imnnediate increase of its efficiency the forestry bureau was reorganized so as to consist of an officer in charge, an inspector, a botanist, a chief clerk and stenographer, a translator, a law clerk, a record clerk, ten assistant foresters, and thirty rangers, the existing force of foresters and rangers to be augmented gradually, as occasion might require, until the number above indicated was reached. Active steps are now being taken toward the location of foresters and rangers at important points throughout the archipelago as fast as circumstances will permit. The present monthly collections of revenue from forest products are about $8,000 (Mexican). This sum should be largely increased in the near future. If the statements of the chief of the forestry bureau are correct the forests of the Philippine Islands are more extensive and more valuable than those of India. It is of the utmost importance that the wanton destruction of valuable timber which hlas been allowed to go on here in the past should be checked at the earliest practicable timle, while with the exercise of proper supervision over the cutting of timber and the construction of better roads the annual revenue from the sale of forest l)roducts should soon become a very important source of income. The chief difficulty which confronts us at present is the lack of honest and active subordinate officials. It is absolutely necessary that the men who occupy these posts should be familiar with tlme more imlportant of the different kinds of woods, so that they may be able to survey consignments of timber and make proper collections thereon. The men at present used for this work were almost without expection formerly emnployed for it under the Spanish r6gime, and in the view of the chief of the bureau many of them are corrupt. They are exposed to severe temlptation, for it is a simple matter to transfer a wood from the class in which it belongs to a lower class, thereby saving a considerable sum to the owner, who is often only too willing to give a part of what he can make in this way to the forester or ranger with whom he is (ealing in order to escape the payment of the full amount due. It is believed that competent men should be trained on tlme ground for these posi 607 tions as speedily as possible, and that meanwhile a close inspection should be maintained over the work of the present incumbents in office, who have been informll(d that if they are detected in dishonesty they will not only be dropped from the service of the forestry bureau, but will be ineligible for appointment to any office which falls under the civil-service law. (Great difficulty has been experienced in securing the services of a competent man for inspector, but it is hoped that such a man may soon be found. The Conmmission has cabled to Washington for four experienced foresters withl a knowledge of Spanish and of tropical botany. These men upon their arrival will enable us to put the service in a much more satisfactory condition. It is very important that responsible and fully qualified white men should be stationed at the more important centers of the lumbering industry in these islands if the forests are to be exploited intelligently and the Government is to receive proper compensation for the timber cut on public lands. It is believed that nine-tenths of the timber standing in many of the forests of these islands might be removed with great profit to the Government and actual improvement to the forests, inasmuch as this would give opportunity for rapid growth to the trees left standing. Capt. George P. Ahern, Ninth United States Infantry, in charge of the forestry bureau of the military government of civil affairs in the Philippines, in his annual report dated August 15, 1900, says: From various sources of information I am led to believe that the public forest lands comprise from one-fourth to possibly one-half of the area of the Philippine Islands, viz, fromn 20,000,000 to 40,000,000 acres. There are fully 5,000,000 acres of virgin forest owned by the state in the islands of Mindora and Paragua. The island of Mindanao, with an area of more than 2,000,000 acres, is almost entirely covered with timber and but a small percentage of cultivated land. In the province of Cagayan, on the island of Luzon, there are more than 20,000,000 acres of forest. In the places just mentioned the cuttings up to the present (late have been very small. In liany other provinces in the island of Luzon, especially in the country close to Manila, much timber has been cut, and to fill large contracts the lumbermen are obliged to go quite a distance fromn this city in order to find a suitable tract. In a recent visit to the southern islands of this group I was impressed with the amount of timber standing on the simaller islands. Frequently the topography was such that it could be exploited with facility. I saw tracts of virgin forest where from 10,000 to 20,000 cubic feet of magnificent timber per acre was standing, trees more than 150 feet in height and with trunks clear of branches for 80 feet and more than 4 feet in diameter. There are many millions of cubic feet of timber in these forests that should be cut in order to properly thin out the dense growth. For instance, where there are three or four trees growing on a space required by one, that one so freed would l)ut on more good wood each year than the four together. Forestry is largely a question of light and shade; it is comparatively easy to learn the most desirable tree species for a certain locality, but the question of whether 300 or 3,000 trees should remain on 1 acre is where the real value of the scientific forester is shown. There are 396 tree species mentioned in the present forestry regulations, and we know of 50 more growing in these islands, and each week we learn of still other species. It is safe to state that the number of tree species found in these islands will be nearer 500 than 450, a great majority of these undoubtedly being hard woods. The edges of the great forests have been scarcely cut away, and 50 valuable hard woods are given to the world, the full value of which species have not been demonstrated as yet. There is a great variety of valuable gum, rubber, and gutta-percha trees, but the trade has been ruined by the Chinese in their efforts at adulteration and other fraudulent practices.. 608 We have a list of 17 dyewoods, the revenue from which, if properly exploited, should pay the cost of the forestry service. A book has been written by Tavera on the medicinal qualities of the native plants, many trees being mentioned as possessing valuable medicinal qualities. Tile ylang ylang tree abounds here, its blossoms producing an oil which is the base of many renowned perfumes. Quite a revenue is gained by those owning these trees. The west slope of the island of Romblon is a mass of cocoanut palms from the water's edge to the mountain top, every tree bringing in a yearly revenue of from $1 to $2, and when it is realized that 400 or 500 such trees may be grown on an acre, one is struck with the wisdom of that former commander of Rolnblon who insisted upon such extensive planting of these trees. In all parts of the southern islands these trees seem to grow without any effort or care. Southern Paragua and Mindanao are celebrated for the great variety of guns, rubber, and gutta-percha trees grown there, but these forests have never been properly exploited, and afford a very attractive field for the investigator. This office is at work compiling notes on about 50 of the imost important tree species, giving popular and scientific descriptions of same, with colored illustrations of the fruit, flowers, and leaf of each species. This, if arranged in book forml, would be of service to all interested in our forests, and will be of great value to the American and other lumbermen who are not familiar with the tropical tree species and who wish to operate in these islands. It will be the aim of this bureau to collect all data of interest connected with our forests. Specimens of woods will be added to those now on hand and their uses and beauty shown as far as practicable. MEANS OF COMMUNICATION. There are no forest roads or river driveways in these islands that are wortl mnentioning. It will be impossible to exploit these forests until roads are constructed, rivers improved, and harbors provided. The methods at present are exceedingly slow and expensive. The tree is felled far from any road, is hauled out very slowly by one or more carabaos, many tracts being left untouched, due to the difficulty of the haul and the lack of roads. The natives are not skilled lumbermen, and while paid but a small wage are by no means cheap labor when we consider the cost of felling and hauling a cubic foot of timber to the shipping point. The most interesting statistics from foreign forestry reports are those published by Germany, showing the increase in the value of forest lands as the character of the roads improve. Good stone roads have made the German forest lands worth to-day on an average of $181 (gold) per acre, and these same lands with standing timber less in quantity and quality than we find at present on many large areas in these islands. There will be some difficulty in the construction of roads in such places as Cagayan, Mindoro, and Paragua, but these difficulties can be overcome. The money for this construction should be appropriated from the forest revenues. Competent engineers should supervise the work. Stone is plentiful and available, but labor is scarce, and such as we have is poor and uncertain. This latter will be the one great difficulty; when that is solved, engineers and money will build roads that will make the Philippine forests yield a revenue that is undreamed of to-day by the residents of these islands. Lumbermen contemplating extensive operations, after solving the labor problem, must next consider the roads and driveways. The main roads should be built by the State with a view to the gradual betterment of the tributary forests. For several years the efforts of the forestry service should be directed to a judicious thinning of the dense jungles where an ax has never been heard; many varieties of undesirable tree species should be cut away and the dense growth thinned out. The State and 609 lumliberien slhould work together; after the first roa(ls are started tile lun)ermen can figure on the possibilities of tile first forest so tapped. There are no pure forests of any one-tree species; clozens of varieties grow in each forest, but rarely Inore than three or four trees of one variety found gro)ul)ed together, so tllat any' lullllrerman looking for a shipload( of any one sI)ecies would find it ilmpossible to cut that and no other, but woull })e ol)liged to procure the samle 1by purchase from men )operating the different sectioiis. Lulnl)ermen must lie willing to take dozens {of varieties of tree species; these sp)ecies may not be desiredt by the lurml)erlnai, but tile forester Imust get rid of them. A Iplan of explloitation should be )roviieilt in advance )by the forestry bureau and then sulmllitted to tile lumllbe ell itereste(l, all( have the forests cut as per said lilans, eithler by contract {or by the paymlent if the State price per culbic foot. S-RVEYS. Before sucl( canl l1e (lole, loiwc\ver, it will i)e llenessary t, I make a survey of the public lands. Triangulation surveys can bJe mlla(le at tlIe ltreserit tile, arid as c(mditions permlitthe detailed( work can follow. Tliei the forest surveys Inma be rla(le, ani(l the amount and kinds of standing timber reported thereol. l'lans of exploitation vouldl then be l)ossilble, and thle Illlmermen would know \-where to () to cut the tirltibtr desire(l and the almount, available. (()NL( LUSJNS. Frorml the above it is evi(lent that there is a very large area (of very valuablle ptul)lic forest land( in these islanlts; that tflese forests are as a rule nIOt at present a\-ailal)le, due t.o t!he lack of roads and skilledt lumilernlll e. TIle lresent personnel hlave not been well trainedl, andl ]have iinever tpracticed( scienitific forestry. The lpub)lie forest laindsl are Iunsurveved( an(d thle aliount of starlling timllber unknown. VWe must 1begin at once wit!l tlle personnel. Tile students albomt to graduate in the colleges here should l)e sliolwn tlhe advantages of a career in the forestry service and a forestry class starte(l, so that when scienltific forestry is i)eguil N wewill hla\e properlv trailledl mien to assist in t}le work. Large luml)er comllll)anies will inot be realdy to (lo mu('h wirk here for at. least one year. By that timlle we will I)e rea(ly witl an a(iministrative force. 'rhe aiiii of the forester is to illll)rove the forest until a given area produces each year a mnaximuinm of wood (of the most ilesirable species. A careful study {of the desirablle species is of first ilmportanice. The undesiralble species nlmust ble cleareil away, and 1)y thoroughly and( scientifically exploiting any one good forest tract the great increase in value of the saime will l)e appTarent and(l a l)olicy of rational forestry encouraged in these islands, which Jili(cy in time will iiake these forests a source of great wealth, will afford employllent for many! thousandI menl, will make such islands as MIindoro habitable, w-ill regulate the water flow, andl will afford ready conmmunicationI through what is at l)resent impassable ani-d deadly jungle. (See Appendix KK, Report of the Military Governor of the Philippine Islands on Civil Affairs, year ending June 30, 1900, pp. 188-190.) The foregoing reports were communicated to Congress and presumably considered by that body. It is well known that by reason of military operations and the ravages of the insurgents v-ery many dwellings and other buildings, in many instances entire towns, have been destroyed and the inhabitants made homeless refugees. The Government is now seeking to induce the inhabitants to return to their homes, rebuild the houses and towns, and engage in the pursuits of peace. 1394 -03 39 610 The existing and improving conditions create a desire among these people to return home; but it is necessary to rebuild these homes, and to do that, timber must be secured. The enormous forests in the Philippines formerly belonged to the Spanish Crown. Spain permitted the free cutting of timber to be used exclusively in the construction of homes for the parties making application and for bridges and other public structures and improvements in the islands. Several of the more important industries of the islands by which the inhabitants secure the means of existence consist of collecting the products of these forests, such as sap, from which a great variety of valuable gums, rubber, and gutta-percha is made; the perfumle-producing blossoms of trees, cocoanuts, and other valuable nuts, tropical fruits, dyewoods, and medicinal plants, etc. Cooking in the Philippines as in other tropical countries is done with charcoal, great quantities of which are consumed in the islands. To produce the necessary supply, the "down timber"? and surplus growth of the forests has been utilized for centuries. The surplus growth and " down timber " of every great forest works positive injury to the forests, and every nation which has forestry laws intended to promote the welfare of its forests provides for the disposition and removal of such timber in order to enable the remaining trees to acquire a better growth and symmetry, and to prevent the destruction of the forests by fire. It can not be presumed that Congress intended to render it impossible for the great majority of the inhabitants of the islands whose homes have been destroyed to rebuild their houses; nor to destroy the several industries by which so many people of the industrial classes earn a living; nor to increase the difficulties of reestablishing the conditions of peace and stopping the war in said islands; nor to prevent the authorities of the local government from preserving the valuable forests which are now the property of the United States. On the contrary, the presumption is that Congress intended to promote such matters and objects, and if said act can be interpreted in harmony with such purpose, that interpretation must be given it. Only a small quantity of growing timber in the Philippines is the subject of private ownership. In the cabled inquiry of the Coninfission hereinbefore set out appears the following: Very little timber on private land; people almost entirely are obliged to depend upon purchase of timber from Government larn to repair damages owing to the war. Mr. Thomas Collins, testifying before the Philippine Commission at Manila, in May, 1899, says: I have been in this country thirty years last February, and have been engaged in the timber business some twenty-five years. * * * You could get concessions from the Government to cut timber on the land anywhere, but you could not cut on private property without making an arrangement with the man who owned the land; (611 but there were very few people who owned tillbeer lands. * * * Tthe land owned by private individuals was mostly unler cultivation, or without b)eing under cultivation tie good timber has been cut off. (Report of 'Plilippine Comimission, 1899, vol. 2, I)]p. 79-85.) If a construction is given this Congressional enactment which cuts off the inhabitants of the islands in their hour of need from the natural supply of timber to which they have had recourse for centuries, they will be at the mercy of the owners of the small amount of timber land subject to private ownership, who will possess (a monopoly capable of being more oppressive than any one of the exclusive concessions granted by the Crown of Spain. Nothing short of malevolence would attribute such intention to the American Congress. The enactment under consideration was undoubtedly intended by Corgress to accomplish some import.ant and well-defined purpose. Continuing the investigation of the facts and conditions with which Congress felt called upon to deal, it will not escape observation that during the last session of the late Congress it was stated in the newspapers and in Congress that companies were being organized for the purpose of acquiring title to large bodies of tinmber lands in the Philippines belonging to the Government of the United States and to the timber on said lands, with intent to cut down and destroy said forests. It is impossible at this time to determine the present or prospective value of these vast tropical forests, and it would lbe manifestly injudicious for the United States to (lispose of them or to permit the enactnment of a general law, the operation of which wvould enable anyolne to secure permanent rights in regard thereto, either of title to the land, the timber, or the products thereof. The enactment under consideration was engraffted tupon the Army appropriation l)ill by what is known as the ' Spooner amlendllent." As originally offered this amendment did not contain the proviso 'Tlhat no sale or lease or other disposition of the public lands or the timlber thereon or the mining rights therein shall be made." The amendment originally provided thatAll military, civil, anld judicial powers necessary to govern the Philippine- Islands * * * shall, until otherwise provided by Congress, be vested in sucll person and persons and shall be exercised in such manner as the President of the United States shall direct. * * * Congress might reasonably anticipate that the persons designated by the President to exercise legislative powers under this enactment would provide a general law governing forestry and forests in the islands, which by virtue of general provisions and operation would enable persons and companies to secure large tracts of land and valuable rights which would eventually prove embarrassing to the United States, and possibly be secured without adequate compensation. The probability of forestry legislation was made greater by the fact that the 612 report of the Philippine Commission, dated Janualry 24. 1901, stated that The whole matter will l)e mnade the subject of careful investigation an(l lef/;slattie action in the near future. The forests in the Philippines belonging to the United States are part of the property of the United States. The right to dispose of such property is vested in Congress by the Constitution. (Art. IV, sec. 3.) This right Congress has sedulously guarded during our entire history. It seems clear that by tilis proviso Congress manifested its unwillingness to authorize the:authorities of the local government of tle Philippines to alienate or permanently dispose of the property of the United States consisting of the forests on public lands in the islands. That Congress intended said proviso as a restriction upon the authority to grant permanent rights by general legislation, and not a restriction on temporary privileges of limited extent, such as may be secured by a franchise, permit, or license, is shown by the adlditional proviso connected with and relating to the proviso under consideration, as follows: And protided ffolrther, That no franchise shall be granted which is not approved by tlhe 'resident of the United States, and is not in lis judgment clearly necessary for the immediate government of the islands and indispensable for tlhe interests of the people thereof, and whichl can not, without great public mischief, b1e iostp)oned until the establishment of permanent civil government; and all such franchises shall terminate one year after the establishment of such permanent civil government. ' Franchise" is defined as follows: A liberty, a right, a privilege. (English's Law Die.) A special privilege conferred by government on individuals, and which does not belong to the citizens generally b)y common right. * * * In a popular sense, the word seems to ble synonymous with right or privilege. (Bouvier's Die.) A particular privilege conferred by grant from a sovereign or a government and vestedl in individuals; an inlmunite or exemption from ordinary jurisdiction. (Webster.) Apparently Congress recognized the rights and necessities of the inhabitants of the islands, and attempted to provide therefor and at the salne time to protect the interests of the United States. To accomplish this double purpose Congress protected the United States from improvident disposal of its property under the provisions of a general law, and provided for the necessities of the inhabitants by permitting the grant of such tenporary privileges as were "indispensable for the interests of the people," placing upon the President of the United States the responsibility for each of such grants. An administrative officer charged with the duty of executing a law is without authority to pass upon the wisdom or unwisdom of the enactment; but it is his duty to ascertain the meaning, purpose, and extent of the law in order that he may not fail by omission nor offend 613 by commission in executing it. To assist such officer in such endeavor there are certain established canons of statutory construction which require that in attempting to construe a statute -consideration be given to (1) the surrounding facts and circumstances, (2) the history of the enactment, (:3) the elementary rule that construction is to be made of all the parts together, and (4) that force and effect is to lbe given to each1 and every part and provision. (See Endlich on Interpretation of Statutes, par. 28 et seq.) The rule adopted )by Lord Coke is: That it is necessary to consider (1) what was the law btefore the act was passed, (2) what was the mischief or defect for which the law had not provided, (3) what reimedy the legislature has appointed, and (4) the reason of the remedy. (See Heydon's case, 3 Rep., 76; 10 Rep., 73, note a.) Also, the equally well-known rule adopted by Turner, L. J., that the true meaning of a statute is to be found not merely fromi the words of the act, but from the cause and necessity of its being made, a comparison of its several parts and extraneous circumstances, the context of the law, its reason and spirit, an(l the inducing cause of its enactment. (Iawkins v. Gathercole, 6 De G(. 5M. and G., 1, 24 L. J., 338; McIntyre,. Ingraham, 35 Miss., 25; State v. Judge, 12 La. Ann., 777.) In preparing this report the writer has endeavored to adhere strictly to these rules. The communication from the commission, as understood by the writer, presents the following inquiries: 1. Does the Congressional enactment hereinbefore set forth prohibit granting to the residents of the- Philippines the privilege of cutting tinber on Government land, to be used in building houses, securing fuel, and similar domestic purposes? If the construction of said enactment hereinbefore attempted is correct, said inquiry is to be answered in the negative, and attention called to the fact that the privilege described may be granted by the President of the United States, when clearly necessary for the immediate government of the islands and indispensable for the interests of the people thereof, upon such terms and conditions as his discretion may determine, provided the license contains a reservation of the right to alter, amend, or repeal the same; and the privilege so granted shall not continue longer than one year after the establishment of permanent civil government in the islands. 2. Does said enactment prohibit cutting timber belonging to the public for use in the construction of bridges and other public works in the islands? The importance of this inquiry is increased by the fact that the commission recently appropriated $1,000,000 in gold for the repair of roads and bridges, the timber used to be taken from the public forests, as was the usage under Spanish dominion. The Government is also 614 engaged in constructing' a mammoth building to be used in the lmanufacture of ice, and contemplates building an extension of the customhouse at Manila. In addition there exists a necessity for the erection of manny schoolhouses, court-houses, barracks for soldiers. and other public structures throughout the islands. If the proprietary title to the public work is in the United States, there is no diminution of the title of the United States to other property when it is used in constructing said works. The question resolves itself into a question as to the power of the United States authorities in the Philippines to designate the location or place of deposit for property belonging to the United States. It would be a captious and unwarranted construction of said enactment which would deny this authority to said officials. Where the proprietary title to a public work was in a municipality or other political subdivision, a strict construction of said enactment may require that said municipality should secure a permit from the President before cutting timber belonging to the public for use in constructing said public work, for technically the title to the timber should pass to the mnunicipality, and would therefore be governed by the samle rules as apply to individual residents. 3. Does said enactment abrogate General Orders, military governor of the Philippines, No. 92, Series 19(00 A copy of General Orders, No. 92, is subnmitted herewith. They constitute a substantial adoption of the forestry laws of Spain in force in the Philippines prior to the American occupation. The general purpose of said laws and of said general orders is to protect and promote the public forests, and the provisions thereof, when properly administered, appear to le well calculated to produce the desired result. (See Rep. of Corn. and Capt. Ahern, antc.) The purpose of the Congressional enactment is to protect the proprietary title of the United States to the forests. There is therefore no conflict of purpose between the two. Incidental to the general purpose of protecting and promoting the public forests, the forestry laws provide a method for the removal and disposal of the "down timber" and surplus growth of these forests. Congress, to provide for the better protection of the title'of the United States, prohibited the alienation of title to the land and the grant of permanent rights in and to said forests,1 ut permitted the President of the United States to grant such temporary privileges as are "clearly necessary for the immediate government of the islands and indispensable for the interest of the people thereof." Such provisions of said General Orders, No. 92, as are inconsistent with this personal and immediate responsibility of the President are in conflict with said enactment, and are thereby rendered null and void. Independent of this statute there rests upon the President of the 615 United States the duty of protecting and preservling the rights and property of the United States wherever located. This duty is especially imperative in territory subject to military governnlent, for therein there is no division of responsibility, since all branches of government meet in the President as Connmlander in Chief of the occupying forces. Such provisions of said General Order, No. 92, as are intended to protect and preserve the interests of the United States in said forests are in harmony with said enactment and not affected thereby. The Secretary of War approved the views expressed in the foregoing report, and the following reply to Judge Taft's dispatch of March 7 was accordingly sent: MAARC 30, 1901. With reference to your telegral of the 7th, it is considered provisions act Congress, March 2, do not interfere with established system forestry regulations provi(le(l for by Spanish law, as modified by military governor-general, orders 92, June 27, 1900. Full discussion of subject forwarded by mail. Advise General MacArthur. ROOT. T.AFT, 3anila. Il Allluall Report of the Secretary of War for the year 19(1, Secretary Root says (pp. (70, 71): The full discussion of the subject referred to in this dispatch was contained in a report to the Secretary of War by the law officer of the Division of Insular Affairs, dated 3March 15, 1901, and a copy of this report is annexed hereto, marked Appendix F. IN RE CLAIM OF MESSRS. SOBRINOS DE HERRERA (NEPHEWS OF HERRERA) FOR PAYMENT OF DAMAGES OCCASIONED BY THE SEIZURE OF THE STEAMER SAN JUAN IN THE HARBOR OF SANTIAGO DE CUBA ON OR ABOUT JULY 17, 1898, BY THE MILITARY FORCES OF THE UNITED STATES. [Submitted November 25, 1901. Case No. 1216, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge and comply with your request for a report on the claim of Messrs. Sobrinos de Herrera for payment of damages occasioned by the seizure of the steamer San Juan by the military forces of the United States. The facts out of which this claim arises, as set forth by the claimants, are as follows (see 1216, Div. Ins. Affrs.): The steamer San Jcan, a Spanish merchant vessel, engaged in the co-stwise trade of Cuba, was detained in the harbor at Santiago by the blockade at that port. On July 17, 1898, this vessel was boarded by a detachment of United States soldiers under the command of an officer of the United States Army, who proceeded to establish and maintain a guard over said vessel and prevented all communication with the shore. On July 20, 1898, the captain and crew were required to take said vessel to Guantanamo under guard of two United States war ves 616 sels, and on July 25 to return to Santiago. The subsequent proceedlings are set forth by the claimants as follows (see 1216, Div. Inls. Affrs.): That on the 26th day of sail mointh, in obedience to orders, the said captain with an interpreter appeared before the general of the American Army in commnand at Santiago de Cuba and was by him informed that an American offiver would iimmediately go aloard an an assume command of the vessel; that against the i)rotest of him, the said captain, such control and command was immediately taken, an(l he, together with the crew, was compelled to leave the said vessel, thel So; Jnan; that no receipt for the delivery or surrender of the vessel was given. This vessel so seized remained in the possession of the United States military authorities until May 1S, 189,!! on which day it was returned to the claimants. It is a well-established and well-known fact that the War I)epartment has jurisdiction to adjust and pay only such claims against the United States Government as arise on contract with the War Department which has been performed. (Brannen e. United States, 20 C. CIs., 219, 224; Dennis r. United States, 20 C. CIs., 119, 121; McClure v. United States, 19) C. Cls., 179, 180; Satterlee. admrx. et al., r. United States, 30 C. Cls., 51, 54; United States?.. Corliss Steam Engine 'Co., 91 U. S., 321; United States v. Bestwick, 94 U. S., 53.) In order to bring this claim within the jurisdiction of the War Department, it would be necessary to have it appear that, at the time the vessel was seized, the military authorities waived the right of the United States to impress the vessel and intended to pay for the property or for its use; that thereafter the property was devoted to the use of the military service of the United States, and that the owner assented to such taking and use of the property. A reading of the statement of the case, made herein by the claimants, makes it impossible to consider the claim as based on a mutual agreement or meeting of minds. The claimants are insistent, if not defiant, in asserting that instead of consenting they at all times protested against the vessel being taken and used by the United States, and instead of voluntarily turning over said vessel to the United States under contract or agreement, they were "compelled to leave," etc. As a further evidence of their determination not to enter into or sustain contract relations with the United States Government with respect to said seizure and use of vessel, the claimants set forth in their application to the War Department (1216 Div. Ins. Affrs.)That on the 28th day of July, 1898, in the city of Santiago de Cuba, he, the said captain of the steamship San Jluan, appeared before I)on Pedro Secullnlino Silva y Fernandez, a notary, and made a deposition, duly executed and certified, setting forth the facts above stated and protesting against the seizure and d(etention of the vessel. It affirmatively appearing that this claim does not arise on a contract with the military branch of the public service which has been performed, I am obliged to report that the application herein does not present an account which the War Department has jurisdiction to settle and pay. 617 11. In order thaLt the Secretary of War mnay be fully cadvised as to this conltrovelrsy, ttention is directed to the fact that the action taken by the militar'y authorities and the conditions existinig at the time and place of the seizure plainly indicate that this vessel was seized either to prevent it from attenipting to engage ill traffic wvith the ports of Ctubla at that timne (,July 17, 18}98) blockaded,by the,Unlited States, or to devote it to the uses of the military s.ervice of the United States without colmpensation, i. (., to impress it. U[nder the laws and tIsages of war either consideration justifies the seizure as a legitimate exercise of belligerent right. rherefore the only (luestioll involved is that of the authority of the United States to exercise belligerent Lights at Santiago de Cub)a on July 17, 1898-. If history records an occasion when a nation mnight properly exercise such rigllts, it app)ears to the writer that Santiago (le Cuba, July 17, 1S98, affords a time and plalce when and where the United States might exercise theimi. Rightly or wrongly, the United States did exercise belligerent rights then 'and there. Persons considering tllhemselves improperl (lealt with )}r such exercise must apply to Congress for relief; it can not be provided by the War Department. It is believed to have been the uniform practice of tle War Department to abide I;, tle well-established legal principle which precllules the executive l)ranch of the Government from allowing clainls for dlamages to property (lestroye(l or injured in the common (lefense or tdue plrosecution of war against public enemies. (MAr. Belknap, Secretary of War, to 'Mr. Lawrence, Felruary 24, 1874.) If the person feeling aggrieved is a citizen of the United States, he may apply directly to Congress. If he is an alien, he mnust present his claimn to the State I)epartment through diplomatic channels. If he is a subject of Spain, consideration niust be given to the provisions of the treaty of 1898, as follows (Art. VII): The United States and Spain mutually relinquish all claimls for indlemnnity, national and individual, of every kind, of either Governimnent, or of its citizens or subjects, against the other Governllent that may have arisen since the bleginning of the late insurrection in Cuba and p-rior to the exchange of ratifications of the present treaty, including all clainis for indenmnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article. III. The claimants, in their written application for relief (121.6, Div. Ins. Affrs.), with reference to their demand for the return of the vessel to them, say: That they, your said petitioners, based their requests on the principles andl rules of equity and justice observed by all civilizetl nations, andl more particularly on the above-mentioned proclamation of the I'resident of the United States, two paragraphs of which are above set forth in full. 618 From this statement it would appear that the claimants contend that the seizure and detention were in violation of the laws and usages of war, as established by the practices of civilized nations. If such be the case, indenmitv for such violation by the military authorities of the United States must be sought for in Congress or by civil suit in court against the individual guilty of the unwarranted action constituting the violation. The proclamation of the President to which claimants refer was made on July 18 189!8, and can not be considered as having a retroactive effect. The first of the two passages of said proclamation to which the claimants refer is as follows: Private property, whether it belongs to private parties or to corporations, must be respected, and it miay be confiscated only as indicated below. Means of communication, such as telegraph and cable lines, railroads and steamers, may be seize(l even though they belong to private persons or to corporations, but in case they are not destroyed for urgent motives they must not be detained. This passage plaiinly contemplates that the military authorities in Santiago de Cuba might continue thereunder to exercise the right to confiscate, seize for the Army (impress), or destroy private property, the only limitation being that where property was seized for the temporary use of the Army it should not be detained after the purposes of the seizure were accomplished. The second of the two passages in said proclamation to which claimants refer is set forth in the application, as follows: The private property seized for the use of the Army shall be paid for in cash, if possible, after a just valuation, and when the payment in cash is not possible, it shall be modte hi bonds. The words in italics do not appear in the order of the President. In that document the language used is, " receipts are to be given." (See G. O. No. 101, A. G. 0., 1898.) It will be noticed that this direction of the President is confined to one class of property, to wit, that seized " for the use of the Army," and clearly relates to subsistence, maintenance, and like matters. It can not be extended to require the military commanders then conducting active military operations in Cuba to pay for property not taken for the use of the Army, but seized, injured, or destroyed to promote the military operations or purposes of the war or to prevent the property being used by the enemy or to his advantage. When it is considered that the property seized'was not paid for in cash, nor its just valuation ascertained, nor a receipt given, it must be held (in the absence of any evidence to the contrary) that the military authorities making the seizure considered the seizure as a measure of public safety required by the military situation, and not a means of acquiring property for the use of the Arm1y. When the proclamation is read as a whole, it is apparent that the 619 President preserved the distinction pointed out by the Court of Claims as follows: (Heflebower r. United States, 21 Ct. Cls. 229, 237.) There is a listinction to be drawn between property used for (Government purposes and Iproperty destroyed for the public safety. If tlle conditions admitted of it bIeing acquired by contract and used for the benefit of the Governmlent, it may be regarded as acluired under an imnplied contract; but if the taking, using, or occupying was in the nature of destruction for the general welfare, or incident to the ravages of war, and whether brought abtout by casualty or by authority, and whether on hostile or national territory, the loss (in the absence of positive legislation) must be borne by him on whon it falls. Even if the Secretary of War were of opinion that the seizure and detention of this vessel were clearly in violation of the laws and usages of war as theretofore accepted, or in violation of said laws and usages as interpreted, declared, amended, or otherwise made binding upon the United States Army by order of the President, he would still be without jurisdiction to determine and pay the tamount of financial loss or damage occasioned by such violation. The Secretary has authority to prohibit a continuance or repetition of an alleged violation, but coImpensation for a violation imposed lust be afforded by Congress. (5 Dec. Comp. of Treas., 6(093, 694; 7 Dec. Comp. of Treas., 517, 523.) I therefore recomlnlend that the claimants be advised that the War Department is without jurisdiction to consider and determine the matter presented by their application. REPORT ON THE DUTY COLLECTIBLE ON THE WRECK OF A STEAMER BROUGHT INTO PORTO RICO AND THERE SOLD WHILE THAT ISLAND WAS UNDER MILITARY GOVERNMENT. [Submitted Septenmber 12,1899. Case No. C-324, Division of Insular Affairs, War Department.] SYN( PSIS. Duty should not be collected on the wreck of a vessel brought into a port of Porto Rico if the w reck is to be restored and continued as a vessel. Duty should be collected if the wreck is broken up and treated as material for consumption in Porto Rico. SIR: I have the honor to acknowledge the receipt of your request for a report on the question as to whether the wreck of a vessel brought into Porto Rico and there sold is dutiable, and if so, at what rate. In compliance with said request 1 have the honor to submit the following: The question is presented to the Department by an inquiry from the collector of the port of San Juan, as follows: What duty collectible on wreck British brigantine caused by recent hurricane, sold auction by British vice-consul? In the Conquteror (166 U. S., 110) the court held that a foreign-built vessel, purchased by a citizen of the United States and brought into the waters thereof, is not taxable under the tariff laws of the United States, for the reason that there is no mention of vessels eo gombie in 620 our tariff acts and no general description under which they could be.included (p. 115); also for the reason that our Government h'as always treated vessels as suti generis and subject to an entirely different set of laws froni those applied to imported articles (p. 118). These reasons do not apply to the tariff regulations of lPorto Rico. (See pp. 69-70, Tariff Regulations for Porto Rico.) In lnited States?,. A Chain Cable (2 Sumn., 362) it was held that a chain cable was not taxable which was purchased at Liverpool by the master of the ship iJfracC/tol to supply the place of a helmpen cable which had become unseaworthy if the cable were purchased boondfic with the intention of using it for that ship and not to sell as merchandise. The cable in question was so used on the ship. Judge Story said that the words "goods, wares, and merchandise," as used in tLe tariff act, included only such as were designed for sale, or to be applied to some use or object distinct from their Jbo1atde appropriation to the use of the ship in which they are imported. In the brig Concord (9 Cranch., 387), the court held: Wlere goods are brought by superior force or by inevitalle necessity into the United States they are not deemed to be so imported, in the sense of the law, as necessarily to attach the right to duties. If, however, such goods are afterwards sold or consumed in the country, or incorporated into the general mass of its property, they become retroactively liable for the payment of duties. In the Gertruttde (3 Story, 68) it was held that the tackle, apparel, and furniture of a foreign vessel, wrecked upon our coast, and landed and sold separately from the hull, were not goods, wxares, and merchandise imported into the United States within the meaning of the revenue laws. This seems to have been adopted as the rule for Porto Rico. (See note p. 70, Tariff Regulations for Porto Rico.) It is therefore recommended that the collector at San Juan, P. R., be advised as follows: The tackle, apparel, furniture, etc., of a vessel wrecked at sea are exempt from duty. (See note, p. 70, Tariff Regulations.) Duty on the wreck of a vessel should not be collected if the wreck is to be restored and continued as a vessel. If the wreck is broken up and treated as material for consumption in Porto Rico, collect duty assessed upon the price for which the property sold at auction if regular appraisement is impracticable. If appraisement is practicable, fix duty by following formula: Dutiable value is to price realized as 100 is to 100 plus the rate of duty. The Secretary of War approved the views set forth in the foregoing report, and the collector of customs at San Juan, Porto Rico, was instructed as follows: SEPTEMBEn 12, 1899. The tackle, apparel, furniture, etc., of a vessel wrecked at sea are exempt from duty. (See note, p. 70, Tariff Regulations for Porto Rico.) Duty on wreck of vessel should not be collected if the wreck is to be restored and continued as a vessel. If the 621 wreck is broken up and treated as material for consumption in Porto Rico, collect duty assessed upon the price for which the property sold at auction, if tile regular appraisemlent is impracticable. If the appraisement is practicable, fix duty by the following formula: Dutiable value is to price realized as 100 is to 100 plus the rate of duty. ELIHU ROOT, ASecrettr! of' Tl r. I)A V;IS, (.ollector, S(n JtanRi, 1P. R. THE RIGHT TO DISPOSE OF THE MONEYS FOUND IN THE SPANISH TREASURIES IN MANILA AND SEIZED BY THE MILITARY FORCES OF THE UNITED STATES WHEN THAT CITY WAS CAPTURED. [Submitted October 14, 1901. ('ase No. 3153, D)ivision of Insular Affairs, War Department.] SYN() PSlS. 1. Property lawfully captured in enemlys' country by the mlilitary forces of the United States instantly lbecolnes tlme public plroperty of the United States, and the right to dispose thereof is vested in Congress. 2. Neither the military authorities of the United States nor the officials in charge of the government of civil affairs in the Philippines are authorized to exercise said right of disposal. SIt: I have the honor to acknowledge and comply with your request for a' report on the right to dispose of the moneys found in the Spanish treasuries in Manila and seized by the military forces of the United States when that city was captured. Ihe question is presented to the War Department as follows: AWhen the city of Manila was occupied by the military forces of the United States, the e re e found in the several public treasuries situate therein funds aggregating 1,273,874.87 Mexican dollars. Included in said funds were a larger number of copper coins of Spanish mintage. These funds were seized by the Comnmander of the military forces of the United States as lawful prize of war, and said moneys were retained Iby the United States upon the conclusion of a peace. This money wasv placed in the custody of the "insular treasurer," an official of the military government of the Philippines. For the purpose of supplying the delands of trade in the islands for coins of small value, Major-General Otis authorized the insular treasurer to exchange $600 of this coin per week for local currency at par. The Philippine Commission formulated a bill for an act repealing said order of Major-General Otis, and authorizing the sale of said Spanish copper coins to the highest bidder. This bill was referred to Major-General MacArthur, military governor, by the Commission, and he expressed his disapproval of the proposed legislation as follows: The sale of the copper coinage as proposed would doubtless prove advantageous to all concerned, but it is thought the prior action of Congress is necessary to convert such coinage or the proceeds of the sale thereof into an asset of the insular treasury. (Ind. of June 12, 1901.) 622 Upon consideration of the objection made by Major-General MacArthur, the Commission voted to refer the question involved to the Secretary of War. (See resolution of July 22, 1901.) In the letter transmitting the papers, William It. Taft, civil governor, says: Personally I have very grave doubt upon the point. If the funds are captured funds, as they doubtless were, they would seem to be the property of the United States Government and available for disposition by no other authority than that of Congress. As the question is consequently recurring, however, it is thought best to obtain an authoritative expression of opinion. (Taft letter, July 31, 1901.) Upon examination of the subject I concur in the opinion expressed by Major-General MacArthur, military governor, in his indorsement of June 12, 1901, for the following reasons: Article VI, section 69, of the Regulations for the Army of the United States provides that — All property, public or private, lawfully taken from the enemy or from the inhabitants of an enemy's country, by the forces of the United States, instantly becomes the public property of the United States, and must be accounted for as such. Property captured or taken by way of requisition belongs to the United States, and can not, under any circumstances, be appropriated to individual benefit. Article I, section 8, of the Constitution, confers upon Congress the authorityTo declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. Article IV, section 3, of the Constitution provides that — The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Congress has sedulously guarded the authority so conferred. From many instances showing the vigilance with which Congress protects this authority I select one which resulted from the military occupation of Mexico in 1847. As the cities of Mexico were severally occupied by the forces of the United States, the officers in commland imposed and collected duties on goods and merchandise brought into the territory subject to their jurisdiction. The money so secured was collected as military contributions or requisitions for the use and benefit of the United States. In this respect the fund so created resembled captured property and differed from the funds derived' from the collection of customs in the Philippines, for those funds are intended for the use and benefit of the archipelago. The money collected in Mexico was not converted into the Treasury of the United States. On the contrary, President Polk used it, as his discretion determined, "toward defraying the expenses of the war." When the accounts of the disbursing officers (who had disbursed the funds pursuant to directions from the President) reached the Treasury Department they were disapproved as being disbursements of money belonging to the United States without authority of law. Congress was 623 called upon to provide the legislation necessary to secure approval of said disbursements. The authority of President Polk to dispose of said funds was challenged in Congress. (Cong. Globe, vol. 20, p. 57.) The matter was referred to a special committee, which submitted a majority report denying that the President had the authority exercised, and a minority report sustaining the President. (See Reports of Committees, 2d sess., 30th Cong., Report No. 119; Mess. of Pres. Polk to Cong., Jan. 2, 1849, Richardson's Comp., vol. 4, p. 672; discussion of message, 20 Cong. Globe, pp. 148, 639.) The matter was finally adjusted by the passage of an act entitled "An act to provide for the settlement of the accounts of public officers and others who may have received moneys arising from military contributions, or otherwise, in Mexico." (9 Stats., 412.) With reference to the property of the United States in Porto Rico, acquired during the war with Spain, the Attorney-General advised the Secretary of AWar as follows: The power to dispose perlmanently of the public lands and public property in Porto Rico rests in Congress, and, in the absence of a statute conferring such power, can not le exercised by the executive department of tie Government. (22 A. G. Op., 545.) In his instructions to the Philippine Commission the President said: That part of the power of government in the Philippine Islands which is of a legislative nature is to be transferred from tile military governor of the islands to this Comlnission, to be thereafter exercised by them in tie place andl stead of the military governor. * * * Exercise of this legislative authority will include the making of rules and orders, having the effect of law, for tle raising of revenue by taxes, customns, duties, and imposts; the appropriation alnd expenditure of public funds of the islands; the establishment of al educational systeml throughout the islands; the establishment of a system to secure an efficient civil service; the organization and establishment of courts; the organization and establishment of municipal and departmental governments, anl all other matters of a civil nature for which the military governor is now competent to I)rovi(le 1y rules or orders of a legislative character. (See p. 4 of instructions of April 7, 1900.) It appears to the writer that the authority of the Commission to legislate on matters affecting the property rights of the United States in the Philippines is no greater than was theretofore possessed by the military governor and does not include the right to dispose of this property. II. Under the Spanish regime in the Philippines persons called upon to give bonds, such as are ordinarily required from civic officials, public contractors, trustees, guardians, and on appeals in legal proceedings, were permitted to deposit in specified public treasuries a sum of money in lieu of the required bond. Since the transfer of sovereignty in the Philippines a number of claims have been presented to the United States based upon allegations that the claimants, prior to the transfer of sovereignty, had made such 624 deposit in some one of the several Spanish p)ublic treasuries of the Philippines; that the money so deposited was and continues to be the property of the claimant; that it was a special deposit, whether so designated or not, and the title to the money itself renmained in the depositor; that the United States seized this private property, and should now return it. The records in the division of insular 1ffairs, War Department, relating to the fiscal affairs of the Philippines, although incomplete, show that the $1,123,910.10 (Mexican) " seized funds' deposited( with the treasurer of the islands includes $149,964. 7 (Mexican) "s' pecial deposits." I have been unable to secure information as to the formll or procedure in which these special deposits were mnade. In view of the claims presented to the United States and the allegations in support thereof, it is ad-isabtle that the Government of the [ United States retain the property, preserving all indicia of ownership as they were at the time the property was seized, until the questions of ownership and final disposition are determined. 1I therefore recommend — 1. That the order of IMajor-General Otis permitting the treasurer of the islands to exchange $600 of said coin per week for local currency be res(cinded. 2. That the Philippine Comumission be advised that the War Departnlent considers the passage of "An act providing for the sale( of Spanish copper coin inl the insular treasury?? unadvisable until authorized by Congress. The views expressed in the foregoing report were approved by the Acting Secretary of Wtar, and the governmlent of the Philippine Islands was advised as follows: 3453] OCTOBIER 15, 1901. Stit: I have the honor to acknowledge the receipt of your letter (latedl July 31, 190:1, transmitting a copy of a bill for "'An act providing for the sale of Spanish copper coins now in the insular treasury," )which proposed act is transmnitted prior to its adoption by the Commission, pursuant to resolution of the Commission passed July 22, 1901, copy of which is attached to your letter. I note the objections to the plroposed act offered by Major-(;eneral MIacArthur, military governor, and( the statement ini your letter that " Personally, I have very grave doubts upon the point" involved. In response to your request for "an authoritative expression of opinion" by the War Department, permit me to say that, upoIn consideration of the matters and questions involved, dletermination is made as follows: 1. The property rights acquired b)y the seizure as prize of war of the moneys found in the Spanish treasuries in Manila upon that city being occupied by the military forces of the United States belong to the people of the United States in their federated capacity, and the authority to dispose of pIroperty so acquired( is vested( in Congress. Neither the mnilitary authorities of the United States nor the officials 625 admiinistering the government of civil affairs ill thie I'hilippines are authorized to divest the United States of its title to said property. I therefore am of opinioii that the adoption by the PIl'ilippine Commission of the proposed "''Ac t providing ior the sale of Spanish (copper coins in the insular treasur"'' is inadNvisable until autho:'ized by Congress. I amn also of opinlion that the order heretofore issued 1)y Major-General Otis while he was military governor directing the insular treasurer to exchange $600 of this coin per week for local currency at par should be rescinded, and have so advised Major-(;eneral Chaffee. (Copy inclosed.) The questions presented herein were referred to the law officer, Division of Insular Affairs, War Departmlent, for report. I inclose copy of his report, to which your attention is directed. Very respectfully, WM. CARY S,ANC-ER, Aictlog Secrettry oqf JTiar. Hon. WMT. IH. TAFTr, (Ciil (Goermor of the Plliliq)lioes. IN RE CLAIM OF DONT J. ANTONIO MOMP6 Y PLA FOR THE RETURN OF AN ALLEGED EXCESS OF DUTIES AMOUNTING TO $5,624.15 IMPOSED AT MANILA ON A SHIPMENT OF WINE LANDED AT THAT PORT. [Stubml)itted (Nov-ember, 22,1901. Case No. c(-1165, I)ivision of Insular Affairs, War Departmnent.] SIR: I have the hlonor to acknowledge and comlnlly with your request for a report on claim of Don J. Antonio Mompo - y Pli for the return of anl alleoged excess of duties am1ounting to -5,i624.15 imposed at MaIila o011 a shipment of wine ]landed at that port. rhe Spanish minister at this capital presents this claiimi to the State D)epartment and the Secretary of State forwards copy of the note of the Spanish iminister to the Secretary, with a request that!yon obtain for the State Departlent a report as to the facts involved. Copy of the comlnunication frolml the Secretary of State and inclosures was forwarded to the military governor of the Philippines for report. A copy of his response is hereto attached, marked "A." Thle clailn arises as follows: On the 2d of March, 1898, onle I)on Angel Ortiz placed an order, by telegran, with the claimant, Don,J. Antonio Momp6 3- PlYa, a wine producer in Spain, for monthly shipments of 300 quarter casks of " La Fama" wine. Pursuant to said order, Momp6, on October 3, 1898, shipped to Ortiz, at Manila, 500 quarter casks of said wine, per steamer [sl( de Luzov, and on October 31, 1898, Momp6 shipped to Ortiz 400 quarter casks of said wine per steamer leol, X'Z11. Both consignments arrived at Manila in January, 1899. The custonis officials at that port required the paynment of duties onl said i ine in accordance with the requirements of thle customs tariff and regula1394 —03 -0 626 tions for the Philippine Islands adopted by the United States authorities. The amount required by said regulations was $7,327.94, which was paid. The contention of the claimant is that said wine should have been admitted into the port of Manila upon payment of the customs duties fixed by the Spanish schedules on imports brought into the Philippines from the Spanish Peninsula. The claimant.asserts that under said Spanish regulations the amount which could be assessed lawfully was $1,703.'79, wherefore the claim of excess charges to the amount of $5,624.15. Although not stated in the note from the Spanish minister, it is assumed'that the claimant bases his claim upon the theory that import duties at Manila should be fixed in harmony with the regulations in force at said port at the time the wine was shipped from Spain, to wit, October 3 and October 31, 1898, instead of the regulations in force at said port at the time the shipment arrived therein, to wit, January, 1899. Such is not the rule prevailing in the United States, nor the rule adopted by the Philippine government. The rule in the United States is that importations are liable for the payment of import duties pursuant to the provisions of the general law in force at the time the goods arrive at the custom-house, unless excepted from its operation by affirmative provisions. This rule has been adopted in the Philippines, and, being in harmony with the established rule of the Government of the United States, should be sustained. The tariff regulations in force at Manila in January, 1899, were those which went into effect November 10, 1898, by virtue of General Order No. 10, office military governor Philippine Islands, October 2', 1898. These regulations do not accord a preferential rate to goods coming from Spain, but require that duty shall be collected in uniform manner, as therein prescribed, regardless of the country of origin or the place of export. The claimant insists that the exemption for which he contends results from the provisions of General Order No. 6, office military governor Philippine Islands, dated September 29, 1898. The provision relied on is as follows: That all goods and merchandise secured or purchased within the domiinions of Spain (the Philippine Islands excepted) since April 25 last, the date of formal declaration of war by the United States Government between that country and the Kingdom of Spain, shall be received into this port upon the same conditions as to payment of tariffs and duties as the goods and merchandise of strictly neutral nations. For a time after the American occupation of Manila the customs duties at that port were collected in accordance with the rates fixed by the Spanish schedules. These schedules discriminated in favor of merchandise brought fromi the Spanish Peninsula. When the United States military authorities opened the port of Manila to foreign com 627 merce, merchandise brought fronm Spain continued to enjoy this preferential rate until October 29, 18S'98, when the order albove referred to was promulgated. The military authorities enforcing custonls duties at Manila deemed it advisable to continue said preferential rate as to goods which had been secured or purchased in Spain for imlportation into the Philippines prior to the declaration lmade by the United States that the condition of war existed between the U[nited States and Spain (April 25, 1898). This discrimination was a privilege, a favor, extended by the (Government under military occupation. It could be withdrawn at the pleasure of the military authorities. At the time the privilege was granted the conditions of actual war between Spain and the UTnited States existed in the Philippines. That conditioni existing, all trade lbetween the territories of the res)ective belligerents Iecalme unlaw ful, except as specially licensed by the proper authorities. rThe port of Manila being at that time subject to Inilitary occupation by the forces of the United States, trade therein was subtject to regulation by the military authorities of the United States. The order of Septenlber 29, 1898, withdrew the pr)ivilege from all goods imported from Spain which were '"secured or purchased' after April 25, 1898, and it was only by inference and practice that the privilege was continued as to goods secured or )purchlsed prior thereto. The order of September 29, 1898, clearly contellplated rhat the privilege as to siuch goods should be exercised prior to November 10, 1898, the date fixed for the going into effect of the tariff schedules then undergoing revision. These schedules and regulation becoming effective, privileges inconsistent therewith could not thereafter be enjoyed. Such would be the rule if the privileges asserted rested on prior orders of the military governmlent, and must be the rule where the privilege rests on a practice resulting from expediency. II. The attention of the Secretary is directed to the fact that there has been received at the War Department a transcrilpt of p)roceedings by a military board sitting in the Philippines, to whoml was referred a clainl for $5,624.15 excess imlport duties, made by Mlr. Angel Ortiz, of Manila, asserted to have been paid by himl on certain Spanish wine brought by hilll into MIanlila in January, 1899. From said proceedings it clearly appears that the claim presented by Ortiz is for the identical payment of duties on which Molmpo bases the claim presented to the State Department by the Spanish minister at this capital. It further appears in said proceedings that upon the arrival of said wine at Manila Angel Ortiz claimed to be the owner and importer thereof, dealt with the custom-house officials and cargo as such, paid the custom duties, and now seeks to recover the alleged excess as being illegally imposed against him. 628 Inclosed in the copy of the note from the Spanish minister, dated May 31. 1901, is a copy of a statement made by I)on J. Antonio Monmpo y P11, certified to }by the Austrian consul at Valencia, Spain, on January 12, 1-99, wherein it is certified that on that date Juan Antonio AMomp — declared solemnlyl and faithfully that Mr. Angel Ortiz, of Manila, had bought from him the following parcel of wine * * * on the 10th of March, 1898. Thlis appears to be the identical wine on which the alleged excess duties were levied and pai(. In fact, it can not be denied that at the time tlle duties were collected the wine was imported and the duty was paild by Angel Ortiz. The basis of the claiml now asserted by Mompo is. as stated in the note of the Spanish minister, that — said excess of duties was charged to his accotuwt by Mr. Ortiz as being extraordinary and unforeseen, as well as unprovided for, when the sale of the merchandise was proposed and contracted for. No showing is made that Mr. Momnp submits to such charge or that he lIs secured by assignment or novation the rights heretofore and now tasserted by Ortiz. Since the Philippine government received the amount in dispute froml Ortiz, and has at all times dealt with said wine as his importation, it is not at liberty to recognize another as entitled to rights or benefits which he continues to assert should be paid to him. In the note to the State Department, dated May 31, 1901, appear certain expressions which indicate that the Spanish Government entertains the belief that the wine shipped from Spain on October 3, 1898, per steamer Ista de L~uzon, was passed through the custom-house at Manila upon paym1ent of the duties under the preferential rate established by the Spanish schedules, and is thereby led to believe that a like privilege should have been accorded to the wine shipped October 31, 1898, per steamer Leon XJII. When it is considered that the preferential rate is a privilege, revocable at the pleasure of the authority granting it, the establishment of the fact from which the deduction is derived does not establish the conclusion. But the fact asserted is not established. When Mr. Ortiz presented this claim on his own behalf, his written application set forth his action in ordering the monthly shipments of wine, the difficulty of securing opportunity for shipment, and continued as follows: This opportunity was on board the steamer Isla de Luzon, that sailed from Spain October 3, 1898, and the shipment was 400 quarter barrels. The second shipment of 200 quarter casks, 180' barrels, and 40 octaves was made on the steamer Leon XIII, sailing from Spain October 31, 1898. Upon arrival of these goods at Manila I was 629 compelledl lb the collector of customs to pay full duties (lespite the General Order No.;, signed iby Major-(;eneral Otis. *- * * * * * * The entire sum paid b)y me to the United States custonms as duties on these wines was $7,327.94. The Spanish regulations would have compelled me to pay $1,703.79. * * * * * * * The difference between $7,327.94 and $1,703.79) is $5,624.15, this being the amount I now ask to be refunded. (See No. 1165, Doc. 4, Div. Ins. Affrs.) The transcript of the proceedings had in connection with this claim when presented by Ortiz does not show that anyone then asserted that the first shipment was permitted to pass through the Manila customhouse on different terms than were enforced against the second shipment. It is of course possible that the facts are as stated in the comlmunication from the Spanish minister. -Therefore attention is invited to the advisability of the Secretary of War instructing the Philippine government to ascertain if said first shi)pment of wine passed through the Manila custom-house without payment of the full amount of customs duties required by the tariff schedules in force in the Philippines in January, 1899, and, if so, to require payment from the party liable therefor of the amount remaining due and unpaid. IV. The action of the United States in seizing 5Manila, subjecting it to military occupation, taking possession of the custom-house, and appropriating the revenues derived from trade with that port, constitute an act of hostility toward Spain, justified by the war at that time (actually existing. On the day these duties were collected (January '. 18!99) the treaty of peace hald not been ratified by either nation, and the requirement of the United States military authorities that a sum of money be paid to them as a condition precedent to the entry of said goods into Manila must be considered an act lacfrarte l(llbo t)eing such, it is an incident of the late war, and was closed by the treaty of peace. It therefore does not seem to be a proper subject for discussion between the Government of Spain and the Government of the United States. If the Government of Spain insists that the action of the IUnited States military authorities involved herein was unwarranted and unjustifiable, and by reason thereof a subject of Spain suffered damage for which he is entitled to indemnity, then it would seem proper to call the attention of the Government of Spain to the stipulation of Article VII of the treaty of peace, as follows: The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other (overnment, that may have arisen since the beginning of 630 the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article. By reason of the foregoing I am obliged to report: 1. That the claim of Don J. Antonio Momp6o A Plai for the return of alleged excess duties imposed at Manila on a shipment of wine brought into that port in January, 1899, is not entitled to recognition or consideration by the Government of the United States. 2. That the views of the War Department and the reasons therefor be communicated to the State Department for the consideration of that Department in determining what answer shall be made to the note of the Spanish minister at this capital, dated May 31, 1901. The views expressed in the foregoing report were approved by the Acting Secretary of War and communicated to the State Department as the views of the War Department. (See War Department letter of November 22, 1901.) IN THE MATTER OF THE APPLICATION OF THE WESTERN RAILWAY OF HABANA, LIMITED, FOR PERMISSION TO EXERCISE RIGHTS ALLEGED TO HAVE BEEN SECURED BY A CONCESSION FOR EXTENSION OF THE RAILWAY GRANTED BY THE SPANISH MILITARY AUTHORITIES IN CUBA, NOVEMBER 24, 1898. [Submitted April 21, 1900. Case No. 953, Division of Insular Affairs, War Department.] I have the honor to acknowledge a communication from the Assistant Secretary in reference to the above-entitled matter as follows: The legal representative of the Western Railway of Habana, Limited, desires a reference of this case to the Attorney-General by the Secretary of War. Is there any reason why his request should not be granted? And if not, favor this office with a form of letter to the Attorney-General asking for a legal opinion upon the questions involved. As the matter of reference and the questions to be submitted to the Attorney-General must be determined by the Secretary of War, I have the honor to submit the following report in regard to the facts and questions of law involved herein for such use as it may afford hirm. On October 31,1857, the Government of Spain granted a concession for the construction of a railway from Habana to Pinar del Rio, in the island of Cuba. The road was constructed and operated and eventually became the property of the Western Railway of Habana, Limited, an English corporation, which is now and for many years has been the owner and operator of said railway. 631 On November 24, 1898, the secretary of public works and communications, Eduardo Dolz, in the name of the Spanish Governor-General of Cuba, Ramlon Blanco, issued what purports to be a grant or concession authorizing the Western Railway of Habana, Limited, to extend its line to the town of Gaane, and in consideration that the company renounced any state guarantee of interest on the capital to be expended on the extension, it was accorded "exemption front import dues for the fixed and movable material to be employed in said extension, the gratuitous grant of lands belonging to the state or to towns which may be necessary for the construction and working of the line, and the right to compulsorily expropriate, by reason of public utility and after indemnity, lands belonging to private individuals which for the same purpose should be indispensable." (See pp. 3 and 4, doe. 1, Cus. and Ins. Div.) On Decenber 14, 1898, the Spanish Governor-General Castellanos (who had succeeded Blanco) suspended the carrying into effect of all concessions then recently made, among them being the one above referred to. The Western Railway of HIabana, Limited, now apply to the military authorities of the United States, charged with the conduct of civil affairs in Cuba, for permission to build and operate said extension, and for this purpose to exercise the rights and powers set forth in the grant issued by the Spanish authorities on November 24, 1898. At the outset of this investigation an administrative question arises, as follows: Shall the intervening government, now in charge of civil affairs in Cuba, permit the exercise of the rights claimed under this concession, even if it were conceded that the concession is a valid and existing one; or will said intervening government elect to require said right to be held in abeyance pending the establishment of a permanent civil government in said island? This question is to be resolved by the Secretary of War in the exercise of his discretion. As to the legal right of the Secretary of War to exercise his discretion in such matters, the Attorney-General has already given his opinion. In a letter to the Secretary of War of date July 10, 1899, the Attorney-General discusses the claim of Michael J. Dady & Co., that said corporation has an existing contract to pave and sewer the city of Habana; and also the demand made by said corporation to be allowed to proceed with the contract. In said letter the AttorneyGeneral says: If the authorities were convinced that Michael J. Dady & Co. had a vested right or a complete contract, it would be within their lawful province to suspend its execution, if they thought the public health or other interests required. 632 If the Secretary of War determines this administrative question adversely to the claims of the railway company, a reference of the questions involved to the Attorney-General will not be necessary. In the absence of such determination, the questions presented, to my mind, by this application are as follows: 1. Did the original concession authorize the Western Railway of Habana, Limited, to construct and operate the branch or extension from Pinar del Rio to Guane, Cuba? 2. Did the original concession, together with the royal order of May 26, 1888, empower said company to "acquire lands of private ownership"' by complying with the Spanish law of expropriation, in the construction of said branch line, and may such authority now be exercised by the company? 3. If the foregoing question is answered affirmatively, what procedure is to be followed in the exercise of said authority 4. Did the original concession, together with the royal order of May 26, 1888, empower said company to acquire "lands belonging to the state whose acquisition shall be made under the conditions or provisions which they may enter into with the royal treasury" for the purpose of constructing said branch line or extension, and may said authority now be exercised by the company? 5. If the foregoing question is answered in the affirmative, what procedure is to be followed in the exercise of said authority? 6. Was the alleged concession for the extension of the railway, purported to have been granted by the Spanish governor-genertal of Cuba, Ramon Blanco, by the secretary of the office, Eduardo Dolz, on November 24, 1898, a valid concession, for the purposes therein stated, at the time it was issued? 7. Did the order of Governor-General Castellanos annul the alleged concession issued by Secretary I)olz, or simply suspend the exercise of rights created by said concession? 8. If the effect of said order was to simply suspend the exercise of rights under sai( alleged concession, did the suspension continue after Governor-General Castellanos ceased to exercise authority in Cubla? 9. Is the United States, while maintaining an intervening government in Cuba, required to recognize and respect said Dolz's concession as a valid and existing one? 10. If the United States is required to recognize and respect said Dolz's concession as valid and existing, is the Secretary of War authorized, empowered, or required to permit the exercise by said company of the rights purported to be conferred by the following provisions of said concession: 2. The concessionnaire company shall be exempt from import dues for the fixed and movable material to be employed in the said extension, such material being understood to be the rails, parts of an engine or engines complete, and the coaches and wagons, and also the wheels, axles, buffers, and brakes necessary therefor and the 633 material for the iron bridges and other material for the construction and working of the line. 3. The concessionnaire shall use gratuitously lands belonging to the State or towns which may be necessary for the construction and working -f the extension line. 4. This line being declared of public utility by the law of the Kingdom of the 26th May, 1888, published in the Madrid Gazette of the 6th June of the same year, the concessionnaire company shall have the right to compulsorily expropriate after indemnity lands belonging to private ilndividuals which may l)e indispensable for the construction and working of the line. (See p. 4, Doc. No. 1, "Concession for the extension of the railway.") 11. If the company possesses the right to now 'compulsorily expropriate after indemnity lands belonging to private individuals," what procedure is to be followed in effecting the transfer of title and fixing the amount of the indemnity? 12. May a person or private corporation owning a concession autho;izing the exercise of the right of expropriation of private property in Cuba, heretofore possessed by the Crown of Spain, continue to exercise said authority under the conditions now existing in the island, and thereby acquire title to property in regard to which said authority had not been exercised at the time Spanisli sovereignty was withdrawn fron Cuba? 13. Upon the presentation to the Secretary of War of a concession purporting to grant rights in Cuba, issued by an officer of the Spanish Government exercising general authority under Spanish sovereignty in the island, and permission sought to exercise said alleged rights, is the Secretary of War to presume that the officer who issued said concession acted within his authority and with the approval of the Crown of Spain, and that the issuance of the concession cured all defects of procedure, and the concession therefore pria ftice valid, and relegate the questions to the courts of the island for determination when presented in controversies arising from the exercise of the alleged rights by the concessionnaire? (See Mitchell r. U. S., 9 Pet., 715, T60; U. S. v. Arredondo, 6 Pet., 691, 728; U.. R'. Peralta, 19 Hlow., 343, 347.) 14. Is the rule or its application controlled by the legislation regarding the Court of Private Land Claims? (26 U. S. Stats., p. 854; Haves v. U. S., 170 U. S., 637, 647; Ely's Admr. v,. U. S., 171 U. S., 220, 223, 224.) While the foregoing questions are all involved herein, several of them may be easily determined by the Secretary of War. The first, involving the right to build and operate the desired extension of the road under the original concession, is to be answered by the interpretation of article 39 of said concession, and the royal order of May 26, 1888, for upon the provisions of these two instruments alone does the company base this much of its claim. Article 39 is as follows: The Government reserves to itself the power to make new railway concessions, whether as extensions of that which the concessionnaires may construct or as branches 634 or offshoots thereof, it being understood that the work must be declared of public utility and use and for the service of private individuals. The concessionnaires shall not be able to oppose these extensions or junctions nor to claim therefor any indemnification of any kind, unless the same result in the interruption of transit or material damage is caused to the railway. If the concessionnaires should wish to construct the said branches or extensions, they shall have the preference in equality of circumstances. (See art. 39, p. 7, Trans. Orig. Concession.) It seems apparent that 1y this article the Spanish Government reserved to itself the privilege of building the extensions, branches, or offshoots of this railway, instead of conferring it upon the concessionnaires. Nor did the concessionnaires derive any benefits from the royal order of May 26, 1888. Under Spanish law a condition precedent for conferring upon the promoters of a project the authority to exercise the right of eminent domain and to grant a subvention is the official declaration that such project is a work of public utility. This requirement of the law was complied with as regards railways in Cub}a by the adoption by the Spanish Government of a general plan of railways for the island of Cuba, whereby the several component lines were declared to be works of public utility. The general plan at first adopted did not include the extension under consideration. Subsequently this branch of this railway and also the one leading from the port of El Marie! to Artemisa were included in said general plan. This was done by the promulgation of the following royal decree: ARTICLE 1. There is included in the general plan of railways of the island of Cuba that which starting from Pinar del Rio as a continuation of the Western Railway shall pass through San Luis, San Juan y Martinez, Sabalo, Guane, and Mantua, and terminate at the port of Los Arroyos, in accordance with the law of the 13th July, 1885; in the same manner shall be considered as included the branch whiichl starting froln the port of El Mlariel shall unite with tle aforesaid Western Railway at Artemisa, or in proximity thereto, p)assing through (Tuanajay. ART. 2. By reason of the special situation of the lines whiclh are isolated from the others of the general plan, the works may be submitted for tender independently of the general system. Wherefore, we command all tribunals, justices, chiefs, governors, and other authorities, civil, military, and ecclesiastical, of whatever class and dignity, to keep and cause to be kept fulfilled and executed the present law in all its parts. Given at Barcelona the 26th May, 1888. I, the Queen Regent. The Minister for the Colonies, Victor Balaguer. Attention is directed to the fact that the foregoing decree provides that "the works may be submitted for tender independently of the general system." This would indicate that the Government of Spain considered it had the right to " tender " or offer for sale the concession for said extensions, and that the original concessionnaires did not possess a vested right therein or thereto. The action of the company in securing the issuance of a concession for the construction of this extension by the Spanish authorities on 635 November 24, 1898, would indicate that the company did not consider itself possessed of such right under the original concession. If the first question is answered in the negative, the succeeding four questions are rendered immaterial, and the first five questions in the abovelist are eliminated from further consideration in this investigation. The sixth question has reference to the validity of the concession granted on November 24, 1898. By the general law of railroads for Spain and its dependencies, the concession for a railroad is required to be created by special act of the Cortes, 1upon the proposal of the Government. (Art. 27, Railroad Laws.) The company claim that the general law was mlodified as to Cuba and the authority to grant such concession was conferred upon the governor-general of the island by royal order of May 5, 1895, and the royal order of June 26, 1895. Copies of said royal orders are hereto attached marked " Exhibit A" and "Exhibit B." Attention is directed to the fact that such authority as is thereby delegated was to be exercised as to certain railway projects therein designated. The order of May 5, 1895, relates to the '"railroad from San Luis to Palma Soriana, as a prolongation of Guantainamo road and that between Batvamo and Maanzanillo." These towns are all at the eastern end of Cuba in the province of Santiago de Cuba. Said order further relates to a proposed railroad from Puerto Principe to Santa Cruz (lel Stur. These towns are also at the eastern end of Cuba in the province of Puerto Principe. The order of June 26, 1895, relates to the "grant to build a narrow gauge railroad between Puerto Principe and Santa Cruz del Sur." These towns are also at the eastern end of the island, being in the province of Puerto Principe. The concession for an extension of the Western Railway of IHabana, now under examination, relates to a railroad between Pinar del Rio and Guanes, towns at the western end of the island in Pinar del Rio Province. In the closing days of Spanish dominion in Cuba a large number of concessions were issued by the Spanish authorities, professedly in pursuance of law. The proceedings as to some of them were initiated during the existence of the late war, and as to others, the inception was prior to the war, but the consummation took place after the peace protocol of August 12, 1898. In passing upon the validity of the alleged concession, issued to this company on November 24, 1898, it is necessary to determine(a) Had the Government of Spain authority and right to grant the the concession at the time the same was issued? 636 (h) Did the Spanish officials have jurisdiction to proceed in manner and form as was done and with reference to the subject-matter of the proceedings? During the negotiations of the mixed commission for the arrangement of terms for the evacuation of Cuba, the attention of the representatives of the United States Government was called to the attempt, then being mlade, to dispose of concessions in Cuba. The information was communicated to Washington. The further proceedings in the matter were as shown by the following correspondence: WASHIN(GTO)N, Decnember 12, 198. Confer immiediately with Spanish officials concerning proposed sale of railway, tramway, and other franchises, and notify them that United States objects and will insist that none be sold or granted. Report result of conference. WILLIAM IMcKINLEY. The following letter was addressed to the governor-general of Cuba: HAB3ANA, J)ecembr 13, 1898. GENERAL: Referring to the granting or selling of railway, tratll, and other franchises, as well as to the proposed sale on the 29th instant by the department of public works and communications of railway franchises on this island, I have the honor to state that under the instructions of my Government it becomes 1my duty to notify Your Excellency that the United States objects to such sales or grants of franchises, and will insist that no franchises of the character named, or of any kind of character, be sold or granted on this island. I have the honor to remain, etc. The following telegram was sent to the President: I A.A NA, )'c'em, er 14, 1898. General CoIBIN, I-tashif/ton (for tle 1'resident): In accordance with instructions, conferred with governor-general on lmatter of franchises. lie stated that action complained of was taken by a secretary of the autonomic government without his authority; that lie considered latter's action ridiculous and improper; that on the 16th instant he would assume supremie control of affairs and would then promptly revoke all such improper and unauthorized actions. IHe gave assurances that affairs would be conducted and conclu(ded to the satisfaction of both Governments. Upon conclusion of conference, formal letter setting forth protest against action complained of was left with him. Report of final action by governor-general will be Imade in due time. WNADE, (ltairm)an. (See p. 146, Proceedings of Mixed Commission for IEvacuation of Cuba. ) Attention is directed to the following letter and copy of order inclosed therein, sent by Governor-Genelal Castellanos to Maj. Gen. J. F. Wade, president of the Commission for the Evacuation of Cuba. GENERAL (OVERNMENT OF TIIE ISLAND OF CUBA, lHabazna, December 15, 1898. His Excellency Maj. Gen. J. F. VADE, President of the Conmmiission for the Evacuation of the Island of Cu(ba. GENERAL: In answer to your attentive letter of the 13th instant, I have thle lionoi to inform Your Excellency that some of the concessions and sales of tranmways in this 637 island were made l)b the mayor of IHabana and the civil governor of the province, with the consent of the secretary of "government," and the rest were granted by the secretary of public works, and all of them were effected without lmy knowledge. Being informed of the matter, I am of the opinion that such concessions and sales are not proper, inasmuch as they would have force after the sovereignty of Spain will have ceased in this island, and convoking 1y secretaries have made them understand it thus, and have decreed the annullment of all the concessions and sales, which I so effect by the accompanying decree. I am, Your Excellency, with the greatest consideration, etc., ADOLFO J. CASTELLANOS. [Copy of translation of decree published in Official Gazette of tabanla, I)ecemnber 15, 1898.] I)EC'REE. By virtue of the faculties of my competency, in view of the circumstances and with the idea of avoiding damages to the interested parties in the announced auction sales, authorizations, an(t concessions imade by the government and corliorations (municipal) for the construction of railroads in this island and of tramiways in this city, which would not be accomplished until after the Spanish sovereignty had ceased, i:l accord witli my council of secretaries, I decree the following: ONLY AwrT'L:. The execution of the before mentioned auction sales, authorizations,and concessions is left in suspense, without prejudice to tIle rights which the parties inteiested in theim consider they have in order to make thenl valid at the proper time and1 before the tribunals and authorities. Given in Habana, I)ecember 14, 1898. ADO)LFOI J. CASTELLANOS, 7The l' cresidet (f the C(oUncil of S'cretrrics. JOSEf M3ARIA. (ALVEZ. 11 the ' Opinion of the Attorney-General as to tramlway concessions, HIabana, Cuba," delivered to the Secretary of War July 10, 1899, appears the following: By a decree of December 7, 1898, one Dolz, secretary of public works and communications, assumed to make a decree by authority of the autonomist government, authorizing a company, etc. *- * -X- * * * The decree issued by Dolz on December 7, 1898, is subject to some suspicion, because it was through this same Secretary 1)olz that the public sale of almost all conceivable public franchises in Cuba was advertised to take place in the latter days of December, just prior to the possession of the island by the United States forces, a scheme so obviously conceived in fraud as to have compelled the military authorities to put a stop to it. Being so admonished, this Department naturally views with suspicion the acts of said Secretary Dolz done and performed with reference to concessions and public property after the signing of the peace protocol of August 12, 1898. But the fact remains that he was an official possessing certain authority under the actual sovereignty exercising dominion in that locality; and this Department is beset with applications of persons claiming the right to exercise certain privileges alleged to have become vested in them by his official acts, which said claims 638 are in many instances supported by the representatives at this capital of foreign governments. It would be of great assistance if this Department were advised as to what, if any, presumption arises fromI the official acts of this official after August 12, 1898, and to what extent, if at all, credence is to be given thereto. Questions 13 and 14 present the questions generally, and with reference to all Spanish officials in the island, without limitation as to the time of the action. In this connection attention is directed to the action of the Secretary of War on the application of the owners of the concession to canalize the Matadero River from the Cristina Bridge to the bay of Atares for permission to exercise the rights granted by the concession. The Secretary of War decided thereon to recognize the concession as primafcacie valid and existing and to remit the final determination of the question to the courts of Cuba, where the questions involved were to be determined without reference to the recognition by the Secretary. This course enabled the concessionnaires to attempt the exercise of the alleged rights and permitted any person, corporation, or municipality asserting conflicting rights or suffering damage to go into court and contest the rights asserted under the concession. The inception of the proceedings for the grant of that concession antedated the war (August 31, 1896) and were completed September 16, 1897, and certified to the Governor-General of the island October 1, 1897, for his approval, which was given on September 28, 1898, and concessionnaires had commenced the work and were in possession when the United States assumed control of the affairs in that locality. The action of the Secretary of War in that instance does not furnish a precedent for the one under consideration, if an order of a military government, made with reference to one matter and one emergency or condition of facts, could be said to establish a "precedent" as that term is used in legal proceedings. The seventh and eighth questions are self-explanatory, and the order of Governor-General Castellanos, referred to therein, is hereinbefore set forth. The ninth question is the administrative question already referred to, and is included in the list for the convenience of the Secretary of War in the event that he considers the question one on which he is not already sufficiently advised. The tenth question contains three subdivisions. The first subdivision presents the inquiry, Would an exemption from payment of import duties, granted by the Spanish Government, afford immunity from the import duties levied by the government now existing in Cula To the writer it appears that this interrogatory must be answered in the negative, for reasons that are manifest. Such contract for immunity would be a special regulation of the relations between the 639 sovereign and the concessionnaire. Such regulation would be of no higher character than laws duly enacted for the regulation of the relation of the inhabitants with the sovereign, or of treaties respecting trade with the island. In his opinion delivered to the Secretary of War, July 10, 1899, on the "Dady contract," the Attorney-General says: By well-settled public law, upon cession of territory by one nation to another, either following a conquest or otherwise, those internal laws and regulations which are designated as municipal continue in force and operation far the government and regulation of the affairs of the people of said territory until the new sovereignty imposes different laws or regulations. Those laws which are political in their nature and pertain to the prerogative of the former sovereignty immediately cease upon the transfer of sovereignty. The provision of the concession now under consideration appears to be simply an agreement on the part of the sovereign that lie will, as the occasion presents itself, exercise his prerogative and exempt the material and rolling stock of said railway from the customs duties which he usually imposes. (See art. 21, Concession for extension.) This authority is no longer exercised in Cuba by the Crown of Spain. This agreement between the Government of Spain and these concessionnaires would probably not be considered as being of more binding force than a commercial treaty between Spain and another sovereignty. The attention of the Secretary of War is directed to the following quotations: Hall on International Law (4th ed., 9S) says: Thus treaties of alliance, of guaranty, or of coitnioc,'e are not binding upon a new state formed by separation. * * * IIalleck on International Law (3d ed. vol. 1, chap. 8, sec. 35) says: But the obligations of treaties, even where some of their stipulations are, in their terms, perpetual, expire in case either of the contracting parties loses its existence as an independent state, or in case its internal constitution is so changed as to render the treaty inapplicable to the new condition of things. The second subdivision of question 10 presents an interrogatory as to the continuance in force, after the relinquishment of sovereignty in Cuba by Spain, of the provision in the Dolz concession, that in the construction and operation of the proposed extension the company " shall use gratuitously lands belonging to the state or towns." Attention is directed to the fact that this privilege is now sought to be exercised as to lands which were not occupied by the company at the time Spanish sovereignty was withdrawn from Cuba, and as to lands the title to which either remains in the towns or passed to the United States in trust for the inhabitants of the island. The contention of the company is, that said provision constitutes a floating grant or roving commission, and that the United States received the public lands in Cuba charged with a lien in favor of the easement now asserted. 640 As to the public lands now held in trust by the United States for the inhabitants of Cuba, the question is, Did such lien attach prior to selection and occupation by the company? As to such property as may be owned by the towns of Cuba, the question is, Are said towns now required to surrender the use of their property in obedience to the royal orders of the Crown of Spain? If this concession purported to convey the ttle to public property, it would seem that the Attorney-General had already sufficiently advised this Department as to the answers to these interrogatories. The Attorney-General, in his opinion as to the application of Ramon Valdez for right to use water power of the River Plata, in Porto Rico, delivered to the Secretary of War, July 27, 1899, says: It is well-settled law, and only needs to be stated to be understood, that when public property is ceded by one nation to another its disposition arnd control are thereafter regulated andl governed not by the laws of the ceding nation but by the laws of the new owner. If, therefore, any substantial act remains to be done, resting in the grace, favor, or discretion of the (;overnlnent, to secure to an apIplicant or alleged concessionary a franchise or right in public property thus ceded by one nation to another such additional action m-ust be obtained in accordance with the laws of the present and not of tile former owner. If at the time the treaty of Paris took effect the applicant had a compllleted and vested right to the use of the waters of the river Plata, that right will be respected by the United States. If, however, his right had not been completed by the action or assent of the Crown authorities of Spain, then his right is not vested, but inchoate, and can not be made vested by the completion of those requisites prescribed by Spanish law. * -X- * -*- * * * Those laws of the former government which have for their object a certain governmental public policy, of which character are laws for the disposition of the public domain and the granting of quasi public franchises, rights, and privileges to private individuals or corporations, ceased to have any force or effect after the sovereignty of the former government ceased. (Harcourt r. Gailliard, 12 Wheat., 523.) If in the granting of a right or privilege the sovereign has retained an iota of authority which may affect its untrammeled exercise and enjoyment, the right is not of the nature of an absolute one, but wholly of an inchoate and imperfect quality. As to inchoate, imperfect, incompllete, and equitable rights, the succeeding sovereign is the absolute dictator. They can not be exercised against his sovereignty, but only by his grace, and his affirmative exercise is necessary to the validity of the concession. By parity of reasoning it would seem that, if at the time the title passed from one sovereignty to the other, anything remained to be done by the concessionnaire which affected the untranmmeled exercise and enjoyment of the right, then such right is not of the nature of an absolute one, and can not be exercised against the new sovereignty excepting by its grace extended by an affirmative act. The honorable Attorney-General, in his opinion as to the application of Frederick W'. Weeks to construct wharf, etc., at Ponce, P. R., deliveied to the Secretary of War, July 26, 1899, says: If constructed, the pier o0 wharf will be upon the public domain of the United States. I understand that, under Spanish law, lands under tide water to high water 641 mark in ports and harbors in the Spanish West Indies belonged to the Crown. As Crown property, they were by the treaty of cession transferred by Spain to the United States of America, and are now a portion of the public domain of that nation. I do not know of any right or power which the Secretary of War or the President has to alienate in perpetuity any of the public domain of the United States, except in accordance with acts of Congress duly passed with reference thereto. There is no legislation by Congress made for or properly applicable to the public domain in Porto Rico. The power to dispose permanentlyof the public lands and public proi)erty in Porto Rico rests in Congress, and, in the alsence of a statute conferring such l)ower, can not be exercised by the executive department of the Government. It seems clear that the geneaal rule announced by the AttorneyGeneral is that when the Crown of Spain ceased to be the owner of said property it ceased to possess the right to alienate said property. The conveyance of such property as had been completely alienated prior to the cession is to be respected, but that uncompleted conveyances were nullified }b the transfer of title to the United States; that the rights of individuals, created by uncompleted proceedings, are inchoate, and are dependent upon the acts of grace of the succeeding sovereign; that neither the Executive nor the Secretary of War is authorized to perform the necessary acts of grace until specially authorized so to do by Congress. It is true that the title to Crown property in Cuba passed to the United States in trust for the people of Cuba, but it does not seem probable that the existence of the trust increases the power of the Executive and the Secretary of War in the nlatter of alienating said property. On the contrary, it would appear that the existence of the trust would impose additional limitations. (See opinion of the Attorney-General delivered to the President September 9I, 1899, as to power of local authorities of the Hawaiian Islands to dispose of portions of the public domain.) Usually the railway concessions granted by the Spanish Government which confer authority to occupy public lands or to exercise the right of eminent domain contain provisions which require the concessionnaire, before exercising such authority, to submit to the Crown authorities plans showing the right of way, the kind, quality, and extent of the lands to be occupied, together with the names of the owners, and specifications showing the details of construction. These plans and specifications must be approved by the authorities before the concessionnaire can exercise authority under the concession in regard thereto. In this way the government secured protection from the improvident use of the authority granted. In the original concession for this railway, and under which the road as now existing was constructed, the following appears: ART. 7. With due anticipation before commencing the construction of each section of the road, the concessionnaires shall present to the Government the plans on a scale of 1-5000 of the definitive course of the line. In these plans shall be 1394-03 41 642 denoted the positions and outline of the stations and sidings, the places for loading and unloading, and the kind, quality, and extent of the lands which may be occupied, with the description of the owners or proprietors thereof. There shall accompany this plan a longitudinal section through the center of the railway, the transverse sections, and state of the gradients, and that of the curves, their radius and amplitude, the description, plans, and estimates of the works, and a design of the system of roads which it is proposed to adopt. ART. 8. These documents being approved by the superior civil governor, the concessionnaires shall, at their own cost, make two copies which shall be legalized by the board of public works, one of which shall be delivered to them and the other to the office of technical inspection. They shall, besides, make a copy of the plan in the part comprising the zones of military defense in order to deliver the same to the office of the commandant of engineers of this garrison, so that it may exercise the supervision which appertains to it. ART. 9. The concessionnaires shall not make any modification in the route approved without the previous authority of the superior civil governor. (See arts. 7, 8, 9, p. 2, trans. of original concession.) There are also many other provisions in said concession calculated to protect the interests of the Government in this regard. Under these provisions it is manifest that until the required approval was secured the authorization was not complete and the right was not an absolute one, for the sovereign still retained authority which might affect its exercise, and under the rule declared by the Attorney-General in the Valdez opinion such imperfect rights are not enforceable until vitalized by the new sovereignty. An examination of the concession for the extension, purporting to have been issued by Secretary Dolz on November 24, 1898, will disclose an absence of special provisions of the character above referred to. Undoubtedly the present government of Cuba would have the right to regulate and control the exercise of rights under this concession by reason of the character of the enterprise, the interests involved, and the far-reaching powers of a government having its inception in military occupation. This right of control will also arise from the general provisions of articles 14, 20, and 24. If this view is correct, it would seem as though the rule applied in the Valdez case is applicable herein, unless a distinction is nade between a right to the 1tile and a right to the use and occupation. In this connection attention is directed to the fact that the railway company was not in possession of the "lands belonging to the state or towns which may be necessary for the construction and working of the extension line" at the time Spanish sovereignty was relinquished; and the treaty of peace restricts the operation of its provisions regarding the impairment of property rights by reason of the relinquishment of sovereignty to "property or rights which by law belong to the peaceful possessiown of property of all kinds." (See art. 8, treaty, Dec. 10, 1898.) The third subdivision of question 10 presents a question as to the exercise of the right of expropriation or eminent domain. The right 643 of eminent domain as here used means "the power in a state to take private property for public use." (6 How., U. S., 536.) Two theories are advanced as to the precise nature of this power. One maintains it to be a right reserved or estate remaining in the sovereign at the time of the original grant of private right, and its exercise is the resumption of original proprietorship. (3 Paige Ch., 73; 34 Conn., 78; 113 N. Y., 275.) If this view is correct, it would seem to follow that when the sovereiogn title to all the land in Cuba was transferred to the United States in trust such title was received in the salme condition as was the title to land in which the Crown of Spain held the sovereign and proprietary or private rights, and the rule applied to public lands should be applied to the public rights ill private lands. This rule has already been discussed herein. The other doctrine maintains the right to be an attribute of sovereigntv and in no sense an interest or estate. Numerous arguments are advanced in support of this contention, the lprincipal one ileing that personal property, in which the state never had any title, i., subject to the right. (Lewis, Em. Dom., sec. 3; Rand, Em. Doml., sec. 3.) The latter doctrine is probably the better received in the United States and the formier in Spain. (S Op. Atty. Gen., 333.) It is not necessary to a proper determination of the matters involved in this application to determline the exact origin of the right or source of the power, for under both doctrines the exercise of the power in Spain and its dependencies is a prerogative of the Crown. When the privilege of exercising it is conferred upon a concessionnaire it still remains a crown prerogative. The concessionnaire becomes the 'agent of the crown for a special purpose, and his authority is similar to that exercised under a power of attorney. (4 Thomp. on Coip., ch. 122.) If by conveyance or otherwise the principal is divested of the atlthor ity thus delegated, the agent is also. Strickly speaking, it is not accu rate to say that the state delegates a right of sovereignty of which it can not divest itself; hence it is more exact to speak of the state exercising this power through an agent. When the Crown of Spain relinquished sovereignty in Cuba, it relinquished the prerogative lghts relating thereto or derived therefrom. (Op. Atty. Gen. on 'Dady contract," July 10, 1899.) If it shall be determined that the company can not now exercise the right to " use gratuitously lands belonging to the state or towns," nor to "compulsory expropriate" lands belonging to private Individuals, it will not he necessary to pass apon question 11. if the contli ly rule prevails, question 11 becomes impoltant, as it i. nece.sary to provide a procedure by which the rights nl, y be exercised, since the Spanish laws regulating the same weie annulled by the lelinquishment of 644 sovereignty. The Attorney-General has advised this Department as follows: By well-settled public law upon the cession of territory by one nation to another, * * * those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upIon the transfer of sovereignty. Political and prerogative rights are not transferred to the succeeding nation. * * * The authority and power of the Crown and of the Crown officers in such instances (lid not pass to the officers of the United States, because the royal prerogatives and political powers of one government (lo not pass in unchanged form to the new sovereign, but terminate upon the execution of a treaty of cession, or are supplanted by such laws and rules as the treaty or the legislature of the new sovereign may provide. (Op. Atty. (en. on Dady contract," July 10, 1899.) Regarding the authority of the government existing in Cuba to prescribe a procedure whereby the municipalities of the island may exercise rights and municipal officers discharge their functions, the Attorney-General says: Cuba, however, is now under the temporary dominion of the United States, which is exercising there, under the law of belligerent right, all the powers of lmunicipal government. In the exercise of these l)owers tle proper authorities of the United States may change or modify either the form or tlhe constituents of the municipal establishments; imay, in lla(ce of tile systenm and regulations that formerly prevailed, substitute new and different ones. Upon this line the same authorities, exercising sovereignty over the island, have the )ower to provide thle methods, terls, and conditions under which municipal illprovemenlts, which relate entirely to property belonging to the municil)ality or hel(d by it for mulblic use, may be carried on. The oldl provisions of the Splanish law may b)e ad(opted(, so far as applicable, or they lmay be entirely dispensed with, an(l a new system set up in their place. The municipal authorities of Habana, in the matter of engaging in tlme construction of public works, may be permitted to proceed under such law as is now applicable, if that be adequate, or they lmay, at tlme will of the nmilitary commander, be restrained from engaging in any such works, or from 1ernlitting any such works to be carried on, although inchoate or even comlpletted c(tracts therefor have previously b:een entered into. In the event it is determined that this company may now exercise the rights claimed, it will be necessary to determine to what extent such exercise may be controlled. Question 12 presents in qcne2Cral form the same question in regard to the exercise of the right of eminent domain as is presented as a special instance in question 10. Both forms are included for the convenience of the Secretary of War in determining the form of interrogatory, should he desire to present the matter to the Attorney-General. In this connection, the attention of the Secretary of War is directed to the theory that the right to appropriate private property for the use of the public without the consent of the owner is a right which belongs to the pablic, or to society in its associated or federated capacity; and is derived from the relation which such association sustains to the individual members thereof; the exercise of which right is justified by the established principle thnt the necessities of society overcome 645 the private rights of individuals. Under this doctrine the authority of the government is that of regulating the exercise of an existing right which society possesses under all governments, or in the absence of any governmental entity or governmnental regulation of such right. Under this doctrine the public, or society, in Cuba would have the same right to appropriate property for the construction of a railroad (the necessity for such road being actually existing) as it would have to enter upon private property to arrest the spread of a conflagration, a flood, or other other imminent peril. Question 13 seeks to present the matter of what presumptions arise from the actions of Spanish officials in granting concessions in Cuba. This question was examined and discussed in the report on the concession to canalize the Maltadero River, etc., above referred to. The authorities referred to in said report have bleen inserted as a note to the statement of the question formulated herein. The question is raised herein in a report on this application made by the secretary of agriculture, industlies, commerce, and public works under the administration of civil affairs in Cuba of MajorGeneral Brooke. From said report the following is quoted: First. The colonial Spanish government of Cuba granted this concession after Spain relinquished its sovereignty over the island. The granting took place precisely when all the special faculties invested in the governor-general by the royal orders of May 5 and June 26, 1895, to save at any cost the political interests of the metropole, had already disappeared, together with said sovereignty. Second. The Spanish law (the Law of Estimates for 1880-81), according to which the concession ought to have been granted, was violated in the important respect of the public auction. Third. The same colonial government which made the concession on November 24, 1898, (lid dictate the suspension thereof twenty days after, on the same (late, (December 14, 1898) on which all kinds of proceedings were stopped, with the view to turning over to the United States the administration of the island. The question is therefore very easy to resolve. Legally the concession must be rejected, but on the ground of equity to the company and of the convenience for the island, it could be accepted, if legalized by means of public auction, according to the law mentioned above. (See secon(l indorsement, Doc. 2.) In regard to this report and the c(ncession and application now under consideration, Major-General Brooke, as military governor of the island, says: The right of the Spanish governor-general of Cuba to grant this concession at the date he (lid is not only questionable, because he was acting under authority of " special powers, ' conferred upon him on account of " the exceptional circumstances" existing in the island, which were undoubtedly the troubles arising from the rebellion of the Cuban people which resulted in the loss of sovereignty over the island by Spain, which powers he was not authorized to use after the protocol was signed, said condition not then existing, but also because even if he (lid exercise them it was not conceded that he had the right to grant concessions (and that, too, outside the terms of the law) which would extend to another sovereignty, or that he could bind 646 the succeeding government to its conditions. Nor was the concession apparently completed by the final approval of the proper Spanish authority in Mla(rid; and it is also included among those suspended by the decree of the captain-general of December 14, 1898, above referred to. It is possible, however, that, as suggested by the secretary of agriculture, commerce, industries, and public works, if the terms of the concession are favorable for the government, and the work is one which should be proceeded with in the interests of the people of the island, it may be considered, not as void, but "voidable" (t the option of the gorernmeot, and so far al actual concession as to be made legal by the ratification of the proper authority of the succeeding sovereignty. (See letter August 22, 1899.) The attention of the Secretary is respectfully directed to the written argument and brief of authorities, filed herein by the applicants, in support of said application. If the Secretary desires to refer this application to the AttorneyGeneral and will indicate the questions to be presented, I will be pleased to prepare draft of letter of transmittal and inquiry. The Secretary of War requested the opinion of the Attorney-General on the questions set forth and discussed in the foregoing report. Prior to the receipt of the Attorney-General's response, the rafilway company withdrew its application. IN RE CLAIM MADE BY THE GOVERNMENT OF SPAIN, THAT PARAGRAPH 14, OF GENERAL ORDERS, NO. 19, ISSUED BY THE MILITARY GOVERNOR OF PORTO BICO, IS IN VIOLATION OF ARTICLE XII OF THE TREATY OF PEACE BETWEEN THE UNITED STATES AND SPAIN. [Submitted July 24, 1S99. Case No. 773, D)ivision of Insular Affairs, War Department.] SIR: The attention of this Department is directed to this matter as follows: The Department of State received a note front the French embassy at this Capital, inclosing a mnemorandum having reference to said order issued by Major-General Brooke. The I)epartment of State sulbmitted the matter to the Attorney-General. A reply was received by the Depalrtment of State from the Attorney-General, stating that as Porto Rico is at present under the control of the military authorities, we would respectfully suggest that the matter be submitted to the War I)epartment. Thereupon, the Department of State, by letter dated May 10, 1899, transmits to this Department copies of the note from the French embassy and the memorandum of the Spanish Government, therein contained. The purpose of said General Orders, No. 19, against one section of which said memorandum is directed, is to define the duties and jurisdiction of the supreme court of justice for the island of Porto Rico. 647 These duties and jurisdiction as set forth in paragraph 1 of said order, are as follows: 1. The full bench of the supreme court of justice, consisting of seven magistrates, including the president, shall hear all the appeals pending decision, as well as those that may hereafter be established and are authorized by the laws of civil and criminal procedure, which, under the Spanish regime, devolved upon the supreme court of Madrid, whose jurisdiction regarding this island ceased by virtue of the peace proctocoi. Attention is directed to the fact that this order was issued December 2, 1898, eight days prior to the completion of the negotiation of the treaty of peace at Paris, December 10, 1898. Upon the treaty of peace being signed. ratified, and proclaimed, so much of said order as was contrary to or in violation thereof became null of force and void of effect. The particular paragraph to which attention is directed reads as follows: IV. The appeals forwarded to and still pending decision at the aforesaid supreme court of Madrid shall be claimed through liplomnatic channels, without detrimlent to the action taken for that object by the parties concerned; and upon their return shall be transferred to tle hearing of the supreme court of justice. It will be noticed that the language used in said paragraph does not confer a present jurisdiction upon thecourt of cases forwarded from said island and pending decision on appeal at the supreme court of Madrid. The language is declaratory of an intention to apply, through diplomatic channels, for a return of cases forwarded on appeal from said island to the supreme court of Madrid. If the applications were successful and the cases were returned, then, and in that event, the jurisdiction of the supreme couirt of justice for the island of Porto Rico would attach, and the appeal would thereafter be heard, without prejudice to the rights of the parties concerned. What disi)osition should be made of judicial proceedings pending in the territories relinquished and ceded by Spain in the treaty of peace was the subject of diplomatic negotiations by the Peace Commlission which formulated the treaty, and resulted in the provisions of Article XII of that instrument. If application should hereafter be made for return of the cases pending in the supreme court of Madrid, the meaning and extent of the provisions of Article XII of the treaty of peace will then be considered. It does not appear that the supreme court of justice for the island of Porto Rico has attempted to exercise jurisdiction in any judicial proceeding now pending decision at the supreme court of Madrid on appeal from that island. This Department can not presume that the supreme court of justice for the island of Porto Rico will attempt to exercise an unauthorized jurisdiction. The action of a court without jurisdiction is of no avail on the one hand or injury on the other. If it shall 648 hereafter appear, during the existence of the military government in any of the territories ceded or relinquished by Spain, that any of the rights secured by the treaty of peace are being violated by the courts in Porto Rico, this Department will, to the extent of its powers, insist upon such rights being maintained. The views expressed in the foregoing report were approved by Hon. Geo. D. Meiklejohn, Acting Secretary of War and communicated to the State Department as the views of the War Department. (See War Department letter to State Department of June 22, 1899.) REPORT ON PROPOSED JUDICIAL ORDER BY THE MILITARY GOVERNMENT OF PORTO RICO RESPECTING "THE PAYMENT OF DEBTS CONTRACTED IN MEXICAN MONEY." [Submitted July 26), 1899. Case No. 826. Division of Insular Affairs, War 1)epartment.] SIR: I have the honor to acknowledge the reference to me for remark" of the draft of a proposed order to be enforced by the existing government in Porto Rico, as follows: JUI)ICIAL ORDER ON THIE PAYMENT OF ])EBTS CONTRACTE) IN MEXICAN MONEY. SAN JUAN, P. R., May 12, 1899. The honorable brigadier-general conmmanding the department has been pleased to issue the following order: 1. All loans and debts contracted in Mexican mnoney where the money payable is specified as lmolney current at the time the sums are refunded can be paid out in Porto Rico currency or in American money as indicated in the following articles: 2. If the payment is made in Porto Rico money 5 per cent should be discounted off the sum, the exchange of the Mexican having been made originally at this rate. 3. If the payment is imade in American mioney, after deducting the 5 per cent difference between the Mexican and the Porto Rico money, it should be calculated at the rate of 1.66] Porto Rico to $1 American money, which is the official rate of exchange. This order, if made and enforced, will affect two classes of commercial contracts or paper: 1. Obligations specifying payment is to be made in money of Mexican coinage. (See indorsement by General Davis, brigadier-general commanding.) 2. Obligations specifying payment is to be made " in the money current at the time of maturity." (See indorsement by Majoi. Sharpe, A. J. A.) By this order the holders and owners of such commercial paper are required to discount their claims 5 per cent if payment is tendered in the present Porto Rican currency. Under the Spanish regime in Porto Rico the currency consisted 649 largely of the free-coined silver of Mexico and Spain, and bank notes made legal tender by law or royal decrees. This currency constantly fluctuated in value. To guard against loss or to avoid dispute, contracts for the payment of money were drawn specifying the kind and character of the money in which the payment should be made, such as "gold of Spanisl miintage," "silver of Mexican mintage," or 'notes of the Spanish Banlk of Porto Rico."' By so doing the contracting parties ceased to consider the currency as legal tender, and elected to consider the subject of the contract as a commodity or an article of commerce, and contracted for the delivery of so many pieces of silver of such a mintage as they might have contracted for the delivery of a specified number of cocoanuts. When this fact is kept in mind it is apparent that the royal decree of Deceniber 7, 1895, by which the Mexican dollar was retired and demonitized-that is, ceased to be a legal tender-had no effect upon contracts of the character indicated. Therefore the proposed order can not be justified as carrying out the purpose of a law existing at the time of the occupation of Porto Rico, nor can said order be justified as an order of a military government maintaining a military occupation. The contracts under consideration are between individuals and affect their private relations. As to such matters, under military occupation, the United States Supreme Court say: By this substitution of a new supremacy, although the former political relations of the inhabitants were dissolved, their private relations, their rights vested under the government of their former allegiance, or those arising from contract or usage, remained in full force and unchanged, except so far as they were in their nature and character found to be in conflict with the Constitution and laws of the United States, etc. (Leitensdorfer r. Webb, 20 How., 176, 177.) Laws impairing the obligations of a contract are repugnant to the Constitution of the United States and the enlightened sentiment of the age. Military governments are to be conducted, as far as practicable, in harmony and accord with the home government or sovereignty which they represent. To compel the discharge of contracts to pay given suns in " money current at the time the sums are refunded" upon payment of 95 per cent of the amount called for is certainly impairing the obligation of the contract. This is not an order fixing the relative values of the various coins, notes, and tokens used as currency or mediums of exchange in Porto Rico. That service has already been performed. The purpose of this order is to adjust differences arising as to contracts between private individuals. Such action is not within the province of the executive branch of the Government. I therefore concur in the opinion expressed in the indorsement of Maj. A. C. Sharpe, Acting Judge-Advocate, that "this appears to be 650 a question for the courts to determine, and it is recommended that no order be issued on the subject."' The views expressed in the foregoing report were approved by Hon. Geo. D. Meiklejohn, Acting Secretary of War and communicated to the military governor of Porto Rico as the views of the War Department. (See War Department letter to Brigadier-General Davis, dated August 5, 1899.) IN RE REVOCABLE LICENSE, HERETOFORE ORDERED ISSUED TO CHARLES B. GASKILL ET AL., TO CONSTRUCT AND OPERATE AN ELECTRIC RAILWAY ON CERTAIN STREETS IN THE CITY OF PONCE, P. R., AND FROM SAID CITY ACROSS THE PORTUGUESE RIVER TO PLAYA. [Case No. 767, Division of Insular Affairs, War Department.] SIR: The applicants, Charles B. Gaskill et al., show to this Department that they desire to construct and operate an electric railway on certain streets in the city of Ponce, P. R., and from said citv across the Portuguese River to the Playa or port of said city. To carry out said project they claim to have purchased or contracted for a right of way through private property from the city to the port. To complete said line it is necessary to cross the Portuguese River, and therefore a revocable license is desirable to permit them to bridge said stream. It is also necessary for said road, if constructed as projected, to cross a street or road known as Carretera de la Plava. This thoroughfare leads from the port of Ponce to the port t San Juan. It was constructed and maintained by Spanish national funds, and belonged to the Crown of Spain. The property right therein passed to the United States when Porto Rico was ceded, and said highway is part of the public property now owned by the United States. A revocable license to bridge the Portuguese River should be based upon plans and specifications for the structure. This prevents misunderstanding or lack of understanding which might lead to serious loss to individual investors and also annoyance and inconvenience to the Government. A license for an electric railway to cross so important a thoroughfare as that leading from Ponce to the port ought to specify the conditions and restrictions as to the grade of the road at the crossing, the extent of the obstruction in the street, and interference with the ordinary traffic of the street, etc., and the exercise of said license made dependent upon compliance with said conditions. In my opinion the revocable license herein should do nothing more than(1) Authorize the bridging of the Portuguese River at a designated point according to plans and specifications to be approved by the Secretary of War. 651 (2) To cross the national highway known. as Carretera de la Playa at a designated point of intersection, at a prescribed grade, and upon stated conditions. To bridge the river and cross the highway are the only things for which a revokable license is desired b:) said applicants. They do not look to the United States Government for the balance of the right of way, but to the individual and municipal owners thereof. The proposed form of license provides a grantto construct, operate, and nmaintain an electric street railway * * * along and across such p)ullic thoroughfares in the city and port of Ponce, P. R., * * * as nmay be necessary in constructing an electric railway * * * as shown on the attached mlap, and is authorized by the Imayor, council, and secretary of said city at a session held on April 28, 1899. This provision is manifestly based upon a belief that the municipality of Ponce has granted a franchise for said electric street railway to said applicants. The showing made herein does not sustain such belief. To arrive at a proper understanding of what has been done by the municipality it is lecessary to review the entire subject of municipal franchises in Porto Rico. Under the Spanish regime the municipalities of Porto Rico liad the right to grant franchises for the construction of street railways (tramways) in the streets owned and maintained by said municipalities. Laws of Railroads for Island of Porto Rico (arts. (9, 75). Regulations for the Exercise of said Laws (art. 104). General Laws of Public Works of Porto Rico (arts. 6, 11). Regulations for said Laws of Public Works (art. 91). Municipal Laws of Porto Rico (art. 75). See also Leyes Civiles de Espaila, Madrid, 18i93; Le- Hipotecaria, Title 1, par. 2, note 2. This right of municipalities was not destroyed by the transfer of sovereignty. Cohas r. Raisin (3 California, 443). Hart r. Burnett (15 California, 530). Payne and DeweVy '. Treadwell (16 California, 221). White r. Moses (21 California, 34). Merryman r?. Bourne (9 Wall., 592). Moore r. Steinbach (127 U. S., 70, 81). The treaty with Spain (Paris, 1898) provides that the property rights of municipalities are to be respected the same as are those of individuals. (Art. 8.) The right to alienate is appurtenant to ownership, and may be exercised by municipalities during ta war as in time of peace, unless forbidden by the conqueror. Halleck's Int. Law, 3d ed., chap. 33, sec. 12. Kent's Corn. on Am. Law, vol. 1, p. 92. 652 The United States recognized the possession of this right by the municipalities of Porto Rico, and in order that such right might not be imprudently exercised and the property imlprovidently disposed of by the municipal authorities, the following order was made: EXECUTIVE MANSION, IVashiingtoo, December 22, 1898. Until otherwise ordered, no grants or concessions of public or corporate rights or franchises for the construction of public or quasi public works, such as railroads, tramways, telegraph and telephone lines, waterworks, gas works, electric light lines, etc., shall be made by any municipal or other local governmental authority or body in Porto Rico except upon the approval of the major-general commanding the military forces of the United States in Porto Rico, who shall, before approving any such grant or concession, be so especially authorized by the Secretary of War. WILLIAM M5cKINLEY. This order is dated December 22, 1898. The proceedings taken herein by the municipal authorities of Ponce were had on April 28, 1899. It does not appear that the permission required by said order has yet been secured in the proceedings invoked hereon. A strict construction of this order would require the authorization of the Secretary of War as a condition precedent to the action of the municipal authorities, or at least the approval of the major-general colmmanding. But I have no doubt the requirements of the order may be waived and the proceedings made valid by the Secretary of War. If this is done, it should be accomplished by the indorsement of the Secretary of War on the papers, showing the action of the municipal authorities and the approval thereof by the major-general commanding. Said indorsement should be one of approval and ratification. This would probably be the inevitable intendment of the revocable license herein. That instrument, as now prepared, in dealing with this branch of the matter involved, does not go far enough in one direction and goes too far in another. If the municipality of San Juan has lawfully granted the use of certain of its streets to these applicants for the purposes of a street railway, such action was taken pursuant to a right of the municipality as proprietor of the streets. The privilege of exercising this right, at this time, is secured from the Secretary of War, but not the right itself. The right was conferred by the Spanish law and continues under the American occupation. If the municipality has granted a franchise to these applicants, then the rights thereby conveyed are vested rights. They are rights lawfully conveyed by a grantor competent to convey to a grantee competent to receive. The terms and conditions of the transfer have been fixed by the parties to the transaction. The proposed revocable license changes the terms and conditions agreed upon by the parties, and provides that the exercise of the rights under an alleged franchise "to construct, operate, and maintain 653 an electric street railway * * * along and across such public thoroughfares in the city and port of Ponce, Porto Rico, * * * as may be necessary * * * and as authorized by the mayor, council, and secretary of said city at a session held on April 28, 1899," shall be " revocable at will by the Secretary of War.'? The Secretary of War is not authorized to exercise such power over the contracts of municipalities in Porto Rico. He may require the municipality to insert such provision in its contract or conveyance as a condition upon which he will allow it to exercise its right to contract or convey, but the limitation must be the act of the contracting parties. The revocable license should deal only with the use of property belonging to the United States and in the custody of the War Department. It has nothing to do with the use of property belonging to the municipality of Ponce. Said license should be confined to the two pieces of government property involved, to wit, the location of a bridge across the Portuguese River and the crossing of the national highway. I ami of the opinion that the applicants herein have not secured a franchise for said street railway from the municipality of Ponce; nor have they been authorized to construct, operate, and maintain said railway by the action of the mayor, council, and secretary of said city on April 28, 1S99. It will be assumed, without further discussion, that by the laws of Spain the municipality of Ponce owned the fee of certain streets on which it is proposed to construct this street railway and possessed the right of alienating the same. That upon Porto Rico being subjected to military government and thereafter ceded to the United States, the property rights of the municipality (including that of alienation) in and to said streets were not lost or changed, except as their exercise was restrained by the Executive order of December 22, 1898. Assuming the requirements of said order complied with and the municipality authorized to exercise the right of alienation, the question arises as to what procedure is to be followed. To answer this question is to solve the problem of municipal franchises in Porto Rico under the provisional government now being maintained there by the United States. The municipality must act by and through its officers or agents. These officers are not authorized to dispose of the property of the municipality as though it belonged to them personally. They can dispose of said property only when authorized so to do by an existing law, and if the law prescribes a method for the exercise of such authority that method must be pursued. Since the lawmaking branch of the United States Government has not acted upon this matter, it follows that such laws, if existing, must be the Spanish laws in force at the date of the cession. The proceedings required for granting franchises by municipalities 654 under the Spanish laws of Porto Rico are (in general) as follows: The promoter presents a general project. If approved by the municipal council, he prepares detailed plans and specifications. These being approved, their commercial value in price is fixed by appraisement. Advertisement is made that a franchise for the execution of said plan will be sold to the best bidder, bids to be received at a given time and place. Bids must be in writing and accompanied by 1 per cent of the estimated cost of the project. The original promoter has the privilege of being substituted for the best bidder. If he declines to be substituted, the original bidder must pay him the appraised value of the plans and specifications. The successful bidder then deposits 3 per cent of the estimated cost of the project as a guaranty of good faith and the franchise is'granted. (See Spanish Laws, cited, ante.) Under the proceedings set forth herein, the applicants have secured an approval of their project by the municipal authorities of Ponce. Under the opinion of the Attorney-General as to tramway concessions, Ponce, P. R., delivered to the Secretary of War July 28, 1899, upon the claim of Messrs. Vicente and Jose Usera to such franchise, such approved plan does not constitute a franchise. The most the Secretary of War can do is to authorize the mlunicipality to proceed in the granting of this application and exercise the rights conferred by the Spanish law. A municipal franchise permitting the use of the streets for particular purposes does not ordinarily convey title, but simply permits use in a prescribed manner for a desired object. Under the Spanish law above quoted the municipalities of Porto Rico are authorized to grant such permits. The Spanish laws in force in Porto Rico do not contemplate the granting of municipal franchises which are exclusive or perpetual. With the exception of the authority exercised by the officers of the Crown, said laws are in harmony with the political institutions of the United States. Relieved from the controlling influence of the Crown officials, they furnish an excellent means and method of disposing of municipal franchises and regulation thereof. In connection with this report, I direct attention to a discussion of the subject of municipal franchises in Porto Rico, recently prepared and submitted by me. I also consider it not improper to direct attention to the fact that the franchise for a railway connecting the city of Ponce with the port is considered the most valuable franchise in Porto Rico, and there are on file in this department a number of applications for it, and many letters and personal inquiries received in relation thereto. There is also one company claiming to own a franchise for said railway. The key to the situation is the right to occupy streets in the city of Ponce. I am not advised that any reason exists for conferring this privilege 655 upon Gaskell to the exclusion of the other applicants, although it is but just to Mr. Gaskell to state that he is the only applicant whose plan, as now presented, contemplates securing a right of way through private property, between the city and the port, instead of occupying the national highway. If the method prescribed by the Spanish law is followed the difficulty is obviated. That law requires the franchise to be disposed of by public bidding after due notice by publication. This would afford all parties interested an equal opportunity to accomplish their desires. [Senate Doe. No. 173, Fifty-seventh Congress, first session. By Senate resolution of March 5, 1902,,000 additional copies were ordered printed.] COMMUNICATION FROM THE LAW OFFICER OF THE DIVISION OF INSULAR AFFAIRS, MAKING.A COMPARISON BETWEEN THE EXISTING LAWS OF THE UNITED STATES AGAINST TREASON, SEDITION, AND MISPRISION AND THE PROVISIONS OF ACT NO. 292 OF THE PHILIPPINE COMMISSION. WAR DEPARTMENT, OFFICE OF TILE SECRETARY, Tcashi ington,. C, Febrt;uaioy 10, 1902. MY DEAR SENATOR: I have the honor to acknowledge the receipt of your request that I make a comparison between the existing laws of the United States against treason, sedition, and lmisprision and the provisions of act No. 29!2 of the Philippine Commission, entitled "An act defining the crimes of treason, insurrection, sedition, conspiracies to commit such crimes, seditious utterances, whether written or spoken, the formation of secret political societies, the administering or taking of oaths to commit crinles or to prlevent the discovering of the same, and the violation of oaths of allegiance, and prescribing punishment therefor." In compliance with your request, I have the further honor to transmit a copy of said act No. 292, together with the suggested comparison. Very respectfully, CHARLES E. MAGOON, In.tfic WDivis/on of Insular Affai' s. Hon. J. B. FORAKER, S7i;ted( State8s S&/nate.. [No. 292.] AN ACT defining the crimes,of treason, insurrection, sedition. conspiracies to commit such crime, seditious utterances, whether written or sp')ken. the formation of secret political societies, the administering or taking of oaths to commit crimes or to prevent the discovering of the same, and the violation of oaths of allegiance, and prescribing punishmlent therefor. By authority of the President of the lnited States, be it eoacted by the U.fited StatesPhilippine Com mission, that: SECTION 1. Every person resident in the Philippine Islands owing allegiance to the United States or the government of the Philippine Islands who levies war against 656 them, or adheres to their enemies, giving them aid and comfort within the Philippine Islands or elsewhere, is guilty of treason, and, upon conviction, shall suffer death, or, at the discretion of the court, shall be imprisoned at hard labor for not less than five years and fined not less than ten thousand dollars. SEC. 2. Every person owing allegiance to the United States or the government of the Philippine Islands, and having knowledge of any treason against them or either of them, who conceals, and does not, as soon as may be, disclose and make known the same to the provincial governor in the province in which he resides, or to the civil governor of the islandls, or to some judge of a court of record, is guilty of misprision of treason, and shall be imprisoned not more than seven years and be fined not more than one thousand dol!ars. SEC. 3. Every person who cites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the Vnite(l States or of the government of the Philippine Islands, or the laws thereof, or who gives aid or comfort to anyone so engaging in such rebellion or insurrection, shall, upon conviction, be imprisoned for not more than ten years and be fined not more than ten thousand dollars. SEC. 4. If two or more persons conspire to overthrow, put down, or (lestroy by force the Government of the United States in the Philippine Islands or the governmnent of the Philippine Islands, or by force to prevent, hinder, or delay the execution of any law of the United States or of the Philippine Islands, or by force to seize, take, or possess any property of the United States or of the government of the Philippine Islands, contrary to the authority thereof, each of such persons shall be punished by a fine of not more than five thousand dollars and 1by imprisonment, with or without hard labor, for a period not more than six years. SEC. 5. All persons who rise publicly and tumultuously in order to attain by force or outside of legal methods any of the following objects are guilty of sedition: 1. To prevent the promulgation or execution of any law or the free holding of any popular election. 2. To prevent the insular government or any provincial or municipal government or any public official fromn freely exercising its or his duties or the due execution of any judicial or administrative order. 3. To inflict any act of hate or revenge upon the person or property of any official or agent of the insular government or of a provincial or municipal government. 4. To inflict, with a political or social object, any act of hate or revenge upon individuals or upon any class of individuals in the islands. 5. To despoil, with a political or social object, any class of persons, natural or artificial, a municipality, a province, or the insular government or the Government of the United States, of any part of its property. SEC. 6. Any person guilty of sedition as defined in section 5 hereof shall be punished by a fine of not exceeding five thousand dollars and by imprisonment not exceeding ten years, or both. SEC. 7. All persons conspiring to commit the crime of sedition shall be punished by a fine of not exceeding one thousand dollars or by imprisonment not exceeding five years, or both. SEC. 8. Every person who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the United States or the insular government of the Philippine Islands or which tend to disturb or obstruct any lawful officer in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices, shall be punished by a fine not exceeding two thousand dollars or by imprisonment not exceeding two years, or both, in the discretion of the court. 657 SEC. 9. All persons who shall meet together for the purpose of forming, or who shall form, any secret society, or who shall after the passage of this act continue membership in a society already formed having for its object, in whole or in part, the promotion of treason, rebellion, or sedition, or the promulgation of any political opinion or policy, shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year, or both. SEC. 10. Until it has been officially proclaimed that a state of war or insurrection against the authority or sovereignty of the United States no longer exists in the Philippine Islands it shall be unlawful for any person to advocate orally, or by writing or printing or like methods, the independence of the Philippine Islands or their separation from the United States, whether by peaceable or forcible means, or to print, publish, or circulate any handbill, newspaper, or other publication advocating such independence or separation. Any person violating the provisions of this section shall be punished by a fine of not exceeding two thousand dollars and imprisonment not exceeding one year. SEC. 11. Every person who shall administer, or be present and consent to the administering of, any oath or any engagement purporting to bind the person taking the same to commit any crime punishable by death or by imprisonment for five years or more, or who shall attempt to induce or compel any person to take any such oath or engagement or who shall himself take any such oath or engagement, shall be punished by a fine not exceeding two thousand dollars or by imprisonment not exceeding ten years. SEC. 12. Any person who administers or who is present at and consenting to the administering of any oath or engagement purporting to bind the person taking the same, either1. To engage in any seditious purpose; or 2. To disturb the public peace or commit or endeavor to commit any criminal offense; or 3. To fail or refuse to inform and give evi(lence against any associate, confederate, or other person; or 4. To fail or refuse to reveal or discover any unlawful combination or confederacy or any illegal act done or to be done or any illegal oath or obligation or engagement which may have been administered or tendered to, or taken by, any person or the import of any such oath, obligation, or engagement; And likewise anyone who attempts to induce or compel any person to take any such oath or engagement, and likewise any person who takes any such oath or engagement, shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding five years, or both. SEC. 13. Any person who under such compulsion as would otherwise excuse him offends against either of the last two preceding sections shall not be excused thereby unless within the periods hereinafter stated he declares the same, and what he knows touching the same, and the persons by whom such oath or obligation or engagement was administered or taken, by information upon oath before a justice of the peace, judge of a court of first instance, or provincial fiscal of the municipality or province in which such oath or engagement was administered or taken. Such declaration may be made by him within fourteen days after the commission of the offense, or, if he is hindered from making it by actual force or sickness, then within eight days after cessation of such hindrance, or on his trial, if that happens before the expiration of either of those periods. SEC. 14. Any person who shall have taken any oath before any military officer of the Army of the United States or before any officer under the civil government of the Philippine Islands, whether such official so administering the oath was specially authorized by law so to do or not, in which oath the affiant in substance engaged to recognize or accept the supreme authority of the United States of America in these 1394-03 — 42 658 islands, or to maintain true faith or allegiance thereto, or to obey the laws, legal orders, and decrees promulgated by its duly constituted authorities, and who shall, after the passage of this act, violate the terms and provisions of such oath or any of such terms or provisions, shall be punished by a fine not exceeding two thousand dollars or by imprisonment not exceeding ten years, or both. SEC. 15. The provisions of this act shall not apply to the organized provinces of Batangas, Cebi, and Bohol, nor to any province where civil government has not been established, so long as insurrection against the authority of the United States exists therein, unless the Commanding General of the Army of the United States, Division of the Philippines, shall authorize and direct prosecutions in the civil courts in such territories for offenses under this act, in which event it shall apply. SEC. 16. All laws and parts of laws now in force, so far as the same may be in conflict herewith, are hereby repealed; provided, that nothing herein contained shall operate as a repeal of existing laws in so far as they are applicable to pending actions or existing causes of actions, but as to such causes of actions, or pending actions, existing laws shall remain in full force and effect, this act being entirely prospective. SEC. 17. A foreigner, residing in the Philippine Islands, who shall commit any of the crimes specified in the preceding sections of this act, except those specified in sections 1 and 2, shall be punished in the same way and with the same penalty as that prescribed for the particular crime therein. SEC. 18. This act shall take effect on its passage. Enacted November 4, 1901. [War Department, office of the Secretary, Division of Insular Affairs. Report on act 292, Philippine Commission, entitled "An act defining the crimes of treason, insurrection, sedition, conspiracies to commit such crimes, seditious utterances, whether written or spoken, the formation of secret political societies, the administering or taking of oaths to commit crimes or to prevent the discovering of the same, and the violation of oaths of allegiance, and prescribing punishment therefor. Submitted by Charles E. Magoon, law officer, Division of Insular Affairs, War Department.] COMPARISON OF THE PROVISIONS OF ACT NO. 292 OF PHILIPPINE COMMISSION, ENTITLED "AN ACT DEFINING THE CRIMES OF TREASON, INSURRECTION, SEDITION, CONSPIRACIES TO COMMIT SUCH CRIMES, SEDITIOUS UTTERANCES, WHETHER WRITTEN OR SPOKEN, THE FORMATION OF SECRET POLITICAL SOCIETIES, THE ADMINISTERING( OR TAKING OF OATHS TO COMMIT CRIMES OR TO PREVENT TIlE I)ISCOVERING OF THE SAME, AND THE VIOLATION OF OATHS OF ALLEGIANCE, ANDI) PRESCRIBING PUNISHMENT THEREFOR,' WITI SIMILIAR STATUTES ENACTED IN THE UNITED STATES. Act No. 292, Philippine Commission. SECTION 1. Ever'y person, resident in the Philippine Islands, owing allegiance to the United States or the government of the Philippine Islands, who levies war against them, or adheres to their enemies, giving them aid and comfort, within the Philippine Islands or elsewhere, is guilty of treason, and, upon conviction, shall suffer death, or, at the discretion of the court, shall be imprisoned at hard labor for not less than five years and fined not less than ten thousand dollars. Laws of the TUnited States (Rev. Stat. of United AStates. SEC. 5331. Every person owing allegiance to the United States who levies war against them, or adheres to their enemies, giving them aid and comfort, within the United States or elsewhere, is guilty of treason. SEC. 5332. Every person guilty of treason shall suffer death; or, at the discretion of the court, shall be imprisoned at hard labor for not less than five years, and fined not less than ten thousand dollars, to be levied and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or con 659 SEc. 2. Every person, owing allegiance to the United States or the government of the Philippine Islands and having knowledge of any treason against them or either of them, who conceals, and does not, as soon as may be, disclose and( make known the same to the provincial governor in the province in which he resides, or to the civil governor of the islands, or to some judge of a court of record, is guilty of misprision of treason, anl shall be imprisoned not more than seven years an( lbe fined not more than one thousand dollars. SEC. 3. Every person who incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or of the government of the Philippine Islands, or the laws thereof, or who gives aid or comfort to anyone so engaging in such rebellion or insurrection, shall, upon conviction, be imprisoned for not more than ten years and be fined not more than ten thousand dollars. SEC. 4. If two or more persons conspire to overthrow, put down, or destroy by force the Government of the United States in the Philippine Islands, or the government of the Philippine Islands, or by force to prevent, hinder, or delay the execution of any law of the United States or of the Philippine Islands, or by force to seize, take, or possess any property of the United States or of the government of the Philippine Islands contrary to the authority thereof, each of such persons shall be punished by a fine of not more than five thousand dollars, and by imprisonment, with or without hard labor, for a period not more than six years. SEc. 5. All persons who rise publicly and tumultuously in order to attain by force or outside of legal methods any of the following objects, are guilty of sedition: veyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States. SEc. 5333. Every person, owing allegiance to the United States and having knowledge of the commission of any treason against them, who conceals and does not, as soon as may he, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason, and shall be imprisoned not more than seven years and fined not mnore than one thousand ldollars. SEc. 5334. Every person who incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States, or the laws thereof, or gives aid or comfort thereto, shall be punished by imprisonment not more than ten years, or by a fine of iot more than ten thousand dollars, or by both of such punishments; and shall, moreover, b)e incapable of holding any office und(er the United States. SE'. 5336. If two or more persons in any State or Territory conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against theml, or to oppose by force the authority thereof; or by force to prevent, hinder, or delay the execution of any law of the United States; or by force to seize, take, or possess any property of the United States contrary to the authority thereof; each of them shall be punished by a fine of not less than five hundred dollars and not more than five thousand dollars; or by imprisonment, with or without hard labor, for a period not less than six months nor more than six years, or lby both such fine and imnprisonmlent. SEc. 5506. Every person who, by any unlawful means, hinders, delays, prevents, or obstructs, or combines and confederates with others to hinder, delay, prevent, or obstruct any citizen from doing any act required to be done to qualify him to vote, or from voting at any 660 PAR. 1. To prevent the promulgation or execution of any law or the free holding of any popular election. PAR. 2. To prevent the insular government, or any provincial or municipal government, or any public official from freely exercising its or his duties or the due execution of any judicial or administrative order. PAR. 3. To inflict any act of hate or revenge upon the person or property of any official or agent of the insular government or of a provincial or municipal. government. election in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be fined not less than five hundred dollars, or be imprisoned not less than one month nor more than one year, or be punished by both such fine and imprisonment. SEc. 5398. Every person who kno-wingly and willfully obstructs, resists, or opposes any officer of the United States in serving or attempting to serve or execute any mesne process or warrant, or any rule or order of any court of the United States, or any other legal or judicial writ or process, or assaults, beats, or wounds any officer or other person duly authorized in serving or executing any writ, rule, order, process, or warrant shall be imprisoned not more than twelve months and fined not more than three hundred dollars. SEC(. 5399. Every person who corruptly, or by threats or force, endeavors to influence, intimidate, or impede any witness or officer in any court of the United States in the discharge of his duty, or corruptly, or by threats or force, obstructs or imp)edes, orendeavors to obstruct or impede, the due administration of justice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three months, or both. SEC. 5407. If two or more persons in any State or Territory conspire for the purpose of impeding, hindering, obstructing, or defeating in any manner the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws, each of such persons shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment. SEC. 5518. If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under 661 PAR. 4. To inflict, with a political or social object, any act of hate or revenge upon individuals or upon any class of individuals in the islands. PAR. 5. To despoil, with a political or social object, any class of persons, natural or artificial, a municipality, a province, or the insular government or the Government of the United States, or any part of its property. SEC. 6. Any person guilty of sedition as defined in section 5 hereof shall be punished by a fine of not exceeding five thousand dollars and by imprisonment not exceeding ten years, or both. the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonlment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment. SEC. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States. SEc. 5519. If two or more persons in any State or Territory conspire, or go in lisguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constitute(l authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; each of such persons shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by illprisonment, with or without hard labor, not less than six months nor more than six years, or by both such tine and imprisonmnent. 662 (Sections 5 and 6 of the act of the Philippine Commission No. 292 are reenactments, with modified penalties, of articles 236 and 237 of the reform penal code of Spain, in force in the Philippines at tile time of the transfer of sovereignty. Said articles of the Spanish code are as follows: "ART. 236. Those who shall rise publicly and tumultuously in order to attain by force or outside of legal methods any of the following objects are guilty of sedition: "1. To prevent the promulgation or execution of laws, or the free holding of popular elections in any province, circumlscription, or electoral district. "2. To prevent any authority, corporation, official, or public officer from freely exercising his duties or the execution of his official or administrative orders. "3. To wreak any leed of hate or revenge upon the person or property of any authority or its agents. "4. To wreak, with a political or social object, any deed of llate or revenge upon individuals or upon any class in the State. "5. To despoil, with a political or social object, any class of persons, the -municipality, the province, of the State of all or any part of their property, or to lay waste or destroy su(h p)roperty. "ART. 237. Those who, by inciting the seditious and making them resolute, shall have promoted and sutpported sedition, and its principal leaders, shall be punished witli the penalty of reclusi6o temporal should they be included in any of the cases specified in the first paragraph of No. 2 of article 174, and with that of iprision mayor should they not be included in any of these." (See Trans. Penal Code foi the Philippines, Dixv. of Ins. Affrs., War Dept.) SEC. 7. All persons conspiring to commit the crime of sedition shall be punished by a fine of not exceeding one thousand dollars, or by imprisonment not exceeding five y!ears, or both. SEC. 5337. Every person who recruits soldiers or sailors within the United States to engage in armed hostility against the same, or who opens within the United States a recruiting station for the enlistment of such soldiers or sailors to serve in any manner in armed hostility against the United States, shall be fined not less than two hundred dollars nor more than one thousand dollars, and imprisoned not less than one year nor more than five years. 663 SEC. 5338. Every soldier or sailor enlisted or engaged within the United States with intent to serve in armed hostility against the same, shall be punished by a fine of one hundred dollars, and by imprisonment not less than one year nor more than three years. SEC. 1342, Art. 19, p. 232, U. S. Rev. Stats. Any officer who uses contemptuous or disrespectful words against the President, the Vice-President, the Congress of the United States, or the chief magistrate or legislature of any of the United States in which he is quartered, shall be dismissed from the service or otherwise punished, as a court-martial may direct. Any soldier who so offends shall be punished as a court-martial may direct. SEC. 1342, Art. 22. Any officer or soldier who begins, excites, causes, or joins in any mutiny or sedition, in any troop, battery, company, party, post, detachment, or guard, shall suffer death, or such other punishment as a court-martial may direct. SEC. 1342, Art. 23. Any officer or soldier waho, being present at any lnutiny or sedition, does not use his utmost endeavor to suppress the same, or having knowledge of any intended mutiny or sedition, does not, without delay, give information thereof to his commanding officer, shall suffer death, or such other punishment as a court-martial may direct. SEC. 1624, Art. 8, provides: "Such punishment as a court-martial may adjudge may he inflicted on any person in the Navy who * * * utters any seditious or mutinous words." Act No. 292 IPhilippiwe Commission. SEC. 8. Every person who shall utter seditions words or speeches, write, publish, or circulate scurrilous libels against the Government of the United States or the insular government of the Philippine Islands, or which tend to disturb or obstruct any lawful officer in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the lawful author Code of Tennessee. SEC. 5555. Whoever shall be guilty of uttering seditious words or speeches, spreading abroad false news, writing or dispersing scurrilous libels against the State or General Government, disturbing or obstructing any lawful officer in executing his office, or of instigating others to cabal and meet together, to contrive, invent, suggest, or incite rebellious conspiracies, riots, or any manner of unlawful feud or differences, thereby to stir people up maliciously to contrive the ruin 664 ities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices, shall be punished by a fine not exceeding two thousand dollars or by imprisonment not exceeding two years, or both in the discretion of the court. (This section was probably drafted by Hon. Luke E. Wright, acting governor of the Philippines, who formerly practiced law in Tennessee. Being familiar with the statutes of that State, he naturally adopted the language employed by the Tennessee legislature in creating an enactment of similar character.) and destruction of the peace, safety, and order of the Government, or shall knowingly conceal such evil practices, shall be punished by fine and imprisonment at the discretion of the court and jury trying the case, and may be compelled to give good and sufficient sureties for his or her good behavior during the court's pleasure, and shall be incapable of bearing any office of honor, trust, or profit in the State government for the space of three years. It shall be the duty of the judge to give this in charge to the grand jury, and no prosecutor shall be required to an indictment under this article. (See sec. 5555, Code of Tennessee, Milliken & Vertrees, 1884.) Rerised Statutes of the United States. SEC. 2111. Every person who sends any talk, speech, message, or letter to any Indian nation, tribe, chief, or individual, with an intent to produce a contravention or infraction of any treaty or law of the United States, or to disturb the peace and tranquillity of the United States, is liable to a penalty of two thousand dollars. SEC. 2112. Every person who carries or delivers any talk, message, speech, or letter, intended to produce a contravention or infraction of any treaty or law of the United States, or to disturb the peace or tranquillity of the United States, knowing the contents thereof, to or from any Indian nation, tribe, chief, or individual, from or to any person or persons whatever, residing within the United States, or from or to any subject, citizen, or agent of any foreign power or State is liable to a penalty of one thousand dollars. SEC. 2113. Every person who carries on a correspondence, by letter or otherwise, with any foreign nation or power, with an intent to induce such foreign nation or power to excite any Indian nation, tribe, chief, or individual, to war against the United States, or to the violation of any existing treaty; or who alienates, or attempts to alienate, the confidence of any Indian or Indians from the Government of the United States, is liable to a penalty of one thousand dollars. Revised Statutes of Florida. 2376. Exciting insurrection. If any person shall excite an insurrection or sedition amongst any portion or class of the population of this State, or shall attempt by writing, speaking, or by any other means to excite such insurrection or sedition, the person or persons so offending shall be punished by imprisonment in the State prison not exceeding twenty years. Penal Code of West Virginia. (Chapter CXLII. ) SEC. 4. If any person shall attempt to justify or uphold an armed invasion of this State, or an organized insurrection therein, by speaking, writing, or printing, or by publishing or circulating any written or printed document, or in any other way whatever, during the continuance of such invasion or insurrection, he shall be fined not exceeding one thousand dollars and be confined in jail not exceeding twelve months. Act No. 292, Philippine Commission. SEC. 9. All persons who shall meet together for the purpose of forming or who shall form any secret society, or who shall after the passage of this act continue membership in a society already formed, having for its object, in whole or in part, the promotion of treason, rebellion, or sedition, or the promulgation of any political opinion or policy shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year, or both. Lauws of Maryland. SEC. 267. If any person or persons within this State shall hold any secret or public meeting or unite with or belong to any secret club or association known by him or them to be intended to effect, promote, or encourage the separation or secession of this State from the Government or Union of the United States, every such person, upon conviction thereof, shall be sentenced to confinement in the penitentiary for a term not less than two nor more than six years, or to a fine of not less than five hundred or more than three thousand dollars, at the discretion of the court. Gen. Stats. of Kansas. (Chap. 100, crimes, &c.) SEc. 3. Any citizen of this State who shall join any society or organization the object of which shall be to produce an insurrection or to revolutionize the governinent of this State or of the United States, or shall furnish arms or military 666 stores to the enemies of this State or of the United States, knowing them to be such, shall, upon conviction, be punished by confinement in the penitentiary for not less than one nor more than ten years. Rerised Stats. of Florida. SEC. 2374. Combination to usurp government: If two or more persons shall combine by force to usurp the government of this State, or to overturn the same, or interfere forcibly in the administration of the government or any department thereof, the person so offending shall Tbe punished by imprisonment in the State prison not exceeding ten years. Decision of the United States ASl>preme Court. The Supreme Court of the United States say: "Open resistance to the measures deemed necessary to subdue a great rebellion by those who enjoy the protection of government and have not the excuse even of prejudice of section to plead in their favor becomes an ellorimous crime when it assumes the form of a secret political organization, armed to oppose the laws, and seeks by stealthy means to introduce the enemies of the country into peaceful communities, there to light the torch of civil war and thus overthrow the power of the United States. Conspiracies like these at such a juncture are extremely perilous, and those concerned in them are dangerous enemies to their country and should receive the heaviest penalties of the law as an example to deter others from similar criminal conduct." (Ex parte Milligan, 4 Wall., 130.) Rev.,Stats. of the United States. SEC. 5335. Every citizen of the United States, whether actually resident or abiding within the same or in any foreign country, who, without the permission or authority of the Government, directly or indirectly commences or carries on any verbal or written correspondence or intercourse with any foreign government, Act No. 292, JPhilipp)ine Comm ission. SEC. 10. Until it has been officially proclaimed that a state of war or insurrection against the authority or sovereignty of the United States no longer exists in the Philippine Islands, it shall be unlawful for any person to advocate, orally or by writing or printing or like methods, the independence of the Philippine Islands or 667 their separation from the United States, whetherby peaceable or forciblemeans, or to print, publish, or circulate any handbill, newspaper, or other publication advocating such independence or separation. Any person violating the provisions of this section shall be punished by a fine of not exceeding two thousand dollars and imprisonment not exceeding one year. or any officer or agent thereof, with an intent to influence the measures or conduct of any foreign government, or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the (Government of the United States; and every person, being a citizen of or resident within the United States, and not duly authorized, who counsels, advises, or assists in any such correspondence with such intent shall be punished by a fine of not more than five thousand dollars and by imprisonment during a term not less than six months nor more than three years; but nothing in this section shall be construed to abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he mnay have sustained from such government or any of its agents or subjects. Laws of Maryland. SEC. 267. If any person or persons within this State shall hold any secret or public meeting, or unite with or belong to any secret club or association known by him or them to be intended to effect, Ipromote, or encourage the separation or secession of this State from the (Gorernnlent or TUIion of the United States, every such person, upon conviction thereof, shall be sentenced to confinement in the penitentiary fox a term not less than two nor more than six years, or to a fine of not less than five hundred or more than three thousand dollars, at the discretion of the court. Stattutes of New Jersey (chapter on crimes). SEc. 4. If any person owing allegiance to this State shall, by speech, writing, open deed or act, advisedly and wittingly maintain and defend the authority or jurisdiction of any foreign power, potentate, republic, king, state, or nation whatsoever in and over this State, or the people thereof, such person so offending shall, on conviction, be punished by fine or imprisonment, or both, or by fine or imprisonment at hard labor, or both,. the fine not to exceed four hundred dollars nor the imprisonment the term of one year. 668 Penal code of Virginia. SEC. 3658. Treason shall consist only in levying war against the State, or adhering to its enemies, giving them aid and comfort, or establishing, without authority of the legislature, any government within its limits separate from the existing government, or holding or executing in such usurped government any office, or professing allegiance or fidelity to it, or resisting the execution of the laws under color of its authority; and such treason, if proved by the testimony of two witnesses to the same overt act or by confession in court, shall be punished with death. * * * * SEC. 3660. If any person attempt to establish any such usurped government and commit any overt act therefor, or by writing or speaking endeavor to instigate others to establish such government, he shall be confined in jail not exceeding twelve months and fined not exceeding one thousand dollars. See Laws of Rhode Island, chap. 30, sections 4-7. (Post p. 683.) Decision of the United States Supreme Court. Respecting the title to sovereignty and property acquired by the United States in the Philippines the Supreme Court say (see the Diamond Ring case, opinion filed Dec. 2, 1901): " It is further contended that a distinction exists in that, while complete possession of Porto Rico was taken by the United States, this was not so as to the Philippines, because of the armed resistance of the native inhabitants to a greater or less extent. "We must decline to assume that the Government wishes thus to disparage the title of the United States or to place itself in the position of waging a war of conquest. "The sovereignty of Spain over the Philippines and possession under claim of title had existed for a long series of years prior to the war with the United States. The fact that there were insurrections against her or that uncivilized tribes may have defied her will did not affect the validity of her title. She granted the islands to the United States, 669 and the grantee in accepting them took nothing less than the whole grant. "If those in insurrection against Spain continued in insurrection against the United States, the legal title and possession of the latter remained unaffected. "We do not understand that it is claimed that in carrying on the pending hostilities the Government is seeking to subjugate the people of a foreign country, but, on the contrary, that it is preserving order and suppressing insurrection in territory of the United States. It follows that the possession of the United States is adequate possession under legal title, and this can not be asserted for one purpose and denied for another. We dismiss the suggested distinction as untenable." Act No. 292, Plilippine Commnission. SEC. 11. Every person who shall administer, or be present and consent to the administering of, any oath or any engagement purporting to bind the person taking the same to commit any crime punishable by death or by imprisonment for five years or more, or who shall attempt to induce or compel any person to take any such oath or engagement, or who shall himself take any such oath or engagement, shall be punished by a fine not exceeding two thousand dollars or by imprisonment not exceeding ten years. SEC. 12. Any person who administers or who is present at, and consenting to, the administering of any oath or engagement purporting to bind the person taking the same, either: 1. To engage in any seditious purpose; or Revised aStatutes of United States. SEC. 5308. Whenever during any insurrection against the Government of the United States, after the President shall have declared by proclamation that the laws of the United States are opposed and the execution thereof obstructed by comnbinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals by law, any person, or his agent, attorney, or employee; purchases or acquires, sells or gives, any property of whatsoever kind or description with intent to use or employ the same, or suffers the same to be used or employed in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person engaged therein, or being the owner of any such property, knowingly uses or employs, or consents to such use or employment of the same, all such property shall be lawful subject of prize and capture wherever found; and it shall be the duty of the President to cause the same to be seized, confiscated, and condemned. SEC. 5440. If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy 670 2. To disturb the public peace or commit or endeavor to commit any criminal offense; or 3. To fail or refuse to inform and give evidence against any associate, confederate, or other person; or 4. To fail or refuse to reveal or discover any unlawful combination or confederacy, or any illegal act done or to be done, or any illegal oath or obligation or engagement which may have been administered or tendered to or taken by any person, or the import of any such oath, obligation, or engagement. And likewise anyone who attempts to induce or compel any person to take any such oath or engagement, and likewise any person who takes any such oath or engagement, shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding five years, or both. shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars and to imprisonment not more than two years. (United States Digest, vol. 3, p. 353.) A conspiracy is a combination of two or more persons by concerted action to accomplish some criminal or unlawful purpose or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means. State v. Mayberry, 48 Me., 218; State v. Rowley, 12 Conn., 101; Smith v. People, 25 111., 17; Commonwealth?v. Hunt, 4 Metc. (Mass.), 111; Alderman r. People, 4 Mich., 414; State. Burnham, 15 N. H., 396; Hinchman v. Richie, Bright (Pa.), 143. The gist of a conspiracy is the unlawful confederacy to do an unlawful act or a lawful act for an unlawful purpose. And the offense is complete when the confederacy is made. (Commonwealth r. Judd, 2 Mass., 337; Commonwealth r. Tibbets, 2 Mass., 538; Commonwealth r. Warren, 6 Maass., 74; People v. Mather, 4 Wend. (N. Y.), 259; State v. Cawood, 2 Stew. (Ala.), 360; State v. Rickey, 9 N. J. L. (4 Hals.), 293; State v. Buchanan, 5 Har. & J. (IMd.), 317; Collins v. Commonwealth, 3 Serg. & R. (Pa.), 220. See also Republica v. Koss, 2 Yeates (Pa.), 8; Morgan v. Bliss, 2 Mass., 112; Commonwealth v. Hunt, Thach. (Mass.), Cr. Cas., 609; People v. Richards, 1 Mich., 216.) A conspiracy is criminal when the act to be done has a necessary tendency to prejudice the public or to oppress individuals by unjustly subjecting them to the power of the confederates. Chew v. Carlisle, Bright (Pa.), 36. The provisions of the remaining sections of said act No. 292 (13-18) are not considered as requring comparison. 671 LAWS OF THE STATES OF THE UNION AGAINST TREASON AND MISPRISION OF TREASON. In many of the statutes hereinafter set forth the words "levying of war" are used to describe and define the crime of treason. That an accurate understanding may be had of what is meant by the expression "levying of war," the following is quoted from Bouvier's Law Dictionary, edition of 1897. (See title, Treason.) "To constitute a 'levying of war' there must be an assemblage of persons with force and arms to overthrow the government or resist the laws. All who aid in the furtherance of the common object of levying war against the United States, in however minute a degree or however remote from the scene of action, are guilty of treason." (4 Sawy., 457.) In ex parte Bollnan et al. (4 Cranch., 75), Chief Justice Marshall said (126): "It is not the intention of the court to say that no individual can be guilty of this crime (treason) who has not appeared in arms against his country. On the contrary, if war be actually levied-that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute,' or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." (See also Druecker v. Salomon, 21 Wis., 621.) CODE OF ALABAMA (1896). TREASON. PROVISIONS OF TIlE CONSTITUTION. ~ 19. That treason against the State shall consist only in levying war against it or adhering to its enemies, giving them aid and comfort; and that no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or his own confession in open court. STATUTORY PROVISIONS. 5605. Ptoishlnent of treason. Everyone who commits the crime of treason against the State must, on conviction, suffer death or imprisonment in the penitentiary for life, at the discretion of the jury trying the same. REVISED STATUTES OF ARIZONA. TITLE III.)-OFFENSES AGAINST THE SOVEREIGNTY OF THE TERRITORY. 30. Whoever unlawfully levies war against this Territory or the United States, or the inhabitants of either, or knowingly adheres to the enemies of either, giving them aid or comfort, is guilty of treason against the Territory of Arizona. 31. Any persons, including Indians, who reside within the Territory are capable of committing treason, and allegiance to the Territory shall be conclusively presumed from a residence therein upon a trial for treason. 32. Levying war against this Territory or the United States, or the inhabitants of either, may consist of inciting, setting on foot, assisting or engaging in any rebellion, Indian outbreak or insurrection against the authority of the Territory or of the,United States, or against the authority of the laws of either. 33. The punishment of treason shall be death. 34. Misprision of treason is the knowledge and concealment of treason, without otherwise assenting to or participating in the crime. It is punishable by imprisonment in the Territorial prison for a term not exceeding five years. 672 STATUTES OF ARKANSAS. [Sandels & Hill, 1894.] TREASON. CRIMINAIL LAW. SECTION 1912. Treason against the State shall consist only in levying war against the State or adhering to its enemies, giving aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the salie overt act, or his own confession in open court. SEC. 1913. Any person convicted of treason shall suffer death. SEC. 1914. Misprision of treason shall consist in the knowledge andl concealment of treason actually committed by others, without otherwise assenting to or participating in the crime. SEC. 1915. Any person duly convicted of misprision of treason shall be punished by fine not exceeding one thousand dollars and imprisonment not exceeding one year. PENAL CODE OF CALIF(RNIA. OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE. SECTION 37. Treason against this State consists only in levying war against it, adhering to its enemies, or giving them aid and comfort, and can be committed only by persons owing allegiance to the State. The punishment of treason shall be death. SECTION 38. Misprision of treason is the knowledge and concealment of treason, without otherwise assenting to or participating in the crime. It is punishable by imprisonment in the State prison for a term not exceeding five years. GENERAL STATUTES OF CONNECTICUT (1888). OFFENSES AGAINST TIHE SOVEREIGNTY OF TIlE STATE. SECTION 1396. Every person who shall commit treason against this State, by levying war against it or by adhering to its enemies, giving them aid and comfort, shall suffer death. SECTION 1397. Every person who shall endeavor to join the enemies of this State, or use his influence to induce any person to join, aid, or comfort them, or shall know of any person endeavoring or using such influence, or of any treason described in the preceding section, and shall conceal the same, shall be fined not more than one thousand dollars, and imprisoned in the State prison not less than three nor more than seven years. SECTION 1398. Every person in thisvState Eyho shall, in time of war or of rebellion against this State or the United States, directly or indirectly, commence or carry on any intercourse with any enemy or rebel, or with any person, for the purpose of being communicated to him, with intent to aid him or to defeat or embarrass the measures of the Government of this State or of the United States; or shall, directly or indirectly, sell or transport, or attempt to transport, to such enemy or rebels arms, munitions of war, or provisions or supplies of any kind, shall be fined not more than one thousand dollars, or imprisoned in the State prison not less than three nor more than seven years, or both. REVISED CODE OF DELAWARE (1893). OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE. SECTION 1- Every person who shall commit treason against the State shall be deemed guilty of felony, and shall suffer death. 673 REVISE1) STATUTES )F FLORIDA (1892). CRIMES ANI) CRIMINAL PROCEDURE. OFFENSES AGAINST THE SOVEREI(NTY OF rHE STATE. 2372. Treason.-Treason against the State shall consist only in levying war against the same, or in a(dhering to the enemeies thereof, or giving them aid and comfort. Whoever commits treason against this State shall be punished by imprisonment in the State prison for life at hard labor. 2373. Misprision of treason-.-Whoever having knowledge of the commission of treason conceals the same and does not as soon as may be disclose and nake known such treason to tile governor or one of the justices of the supreme court or a judge of the circuit court, shall be judged guilty of the offense of misprision of treason and he punished by implrisonment in the State prison not exceeding five years or by fine not exce(eing one thousand dollars. 2374. Comwbination to 'usurp government.-If two or more persons shall combine by force to usurp the government of this State, or to overturn the same, or interfere forcibly in the administration of the government, or any department thereof, the person so offending shall be punished bly imprisonment in the State prison not exceeding ten years. 2375. Combination against part of the people of the State.-If two or more persons shall combine to levy war against any part of the people of this State, or to remove them forcibly out of this State, or to remove them fromn their habitations to any other part of this State by force, or shall assemble for that purpose, every person so offending shall be punished by imprisonment in the State prison not exceeding five years, or by fine not exceeding one thousand dollars. 2376. Exciting ilsurrectio.-If any person shall excite an insurrection or sedition amongst any portion or class of the population of this State, or shall attempt by writing, speaking, or by any other means to excite such insurrection or sedition, the person or persons so offending shall be p)unished by imprisonment in the State prison not exceeding twenty years. CODE (OF TGEORGIA. CONSTITUTIONAL PROVISION. 5724. Treason.-Treason against the State of Georgia shall consist in levying war against her, adhering to her enemies, giving them aid and comfort. No person shall be convicted of treason, except on the testimony of two witnesses to the same overt act, or confession in open court. ILLINOIS STATUTES (1898). TREASON. CRIMINAL COI)E. 264. Punishment.-Treason shall consist in levying war against the government and people of this State in the same, or being adherent to the enemies of this State, giving them aid, advice, and comfort in this State or elsewhere. Any person being thereof duly convicted of open deed by two or more witnesses or voluntary confession in open court, shall suffer the pains and penalties of death; and when the overt act of treason shall be committed without the limits of this State, the person charged therewith may be arrested, tried, and punished in any county in this State, within the 1394-03 43 674 limits of which he may be found; and the offense may be charged to have been committed in the county where he may be arrested. 265. Misprision of treason.-Misprisions of treason shall consist in the knowledge and concealment of treason, without otherwise assenting to or participating in the crime. Any person found guilty thereof shall be imprisoned in the penitentiary not exceeding two years. REVISED STATUTES OF INDIANA (1881). PROVISIONS OF THE CONSTITUTION. 73. Treason.-Treason against the State shall consist only in levying war against it and in giving aid and comfort to its enemies. STATUTORY PROVISIONS-CRIMIES AGAINST THIE STATE. 1902. Treason.-1. Whoever levies war against this State, or knowingly adheres to its enemies, giving them aid or comfort, is guilty of treason against the State of Indiana, and, upon conviction thereof, shall suffer death or be imprisoned il the State prison during life, in the discretion of the jury. 1903. Misprision of treason.-2. Whoever, having knowledge that any person has committed treason or is about to commit treason against this State, willfully omits or refuses to give information thereof to the governor or some judge of the State, as soon as may be, is guilty of misprision of treason, and, upon conviction thereof, shall be imprisoned in the State prison for any period not exceeding twenty-one years and fined in any sunm not exceeding ten thousand dollars, and shall also be disfranchised and rendered incapable of holding any office for any period not less than ten years. STATUTES OF THE INDIAN TERRITORY. CHAPmTER 19.-CRIMINAL LAW. IV. Treason,dl ispri);.ioi of trea(.son. SEC. 855. Treason against the State shall consist only in levying war against the State, or adhering to its enemies, giving aid aInd comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or his own confession in open court. SEC. 856. Any person convicted of treason shall suffer death. SEc. 857. Misprision of treason shall consist in the knowledge and concealment of treason actually committed by others, without otherwise assenting to or participating in the crime. SEC. 858. Any person duly convicted of misprision of treason shall be punished by fine not exceeding one thousand dollars and imprisonment not exceeding one year. CODE OF IOWA. PROVISIONS OF THE CONSTITUTION. SEC. 16. Treason.-Treason against the State shall consist only in levying war against it, adhering to its enemies, or giving them aid or comfort. No person shall be convicted of treason, unless on the evidence of two witnesses to the same overt act, or confession in open court. 675 PRovISIONS OF THE CRIMINAL CODE. TITLE XXIV. —OF CRIMES ANI) PUNISHMENTS. CHAPTER I. —Of roflenses against the sovereigt!l of the State. 5125. Treason. —Whoever is guilty of treason, by levying war against the State, or adhering to its enemies, giving them aid and comfort, shall be punished t)y imprisonment for life at hard labor in the State penitentiary. Treason is not a bailal)le offense. 5126. Misprision of treason. —If any person have knowledge of the commission of the crime of treason against the State and conceal the saute, and not as soon as may be disclose such offense to the governor or some judge within tle State, he is guilty of misprision of treason, anll shall be fined( not exceeding one thousand dollars, or be imprisoned in the penitentiary not exceeding three years nor less than one year. GENERAL STATUTES OF KANSAS (1897). CHIAiYrER 100.-OF CRIMIES A.NX) I'NIS'IH.NEN'rS. ARTICLE I..-(!tf.;'tS(.s (a((g ai.'4!oc')0r))C)re. SECTION 1. Every person who shall be.onvictedl of treasonll against thle State shall suffer death. SEc 2. M.\isprision of treason shall consist in l)eing a party to) any treasonable purpose against this State, or ill having and holding correspon lence countenancing su('h treasonable purpose with any persoll or persons who shall be engagedl in setting thle samie uponI foot against the State, or in having knowledge (if thle existence of a tre:l.sonalble purpose, or of an act of treasoll against the State, andl failing slpeedily to inake the samle known to the governor of this State, and(l shall, upol)n c('viction, be pun!lished by confineilent ill the Ienlitenitiarv for not less than one year nor nIore than ten years. SE('. 3. Any citizen of this State wlo shall join any society or organization the object of whichl shall be to prod(uce an insurrectionll or to revolutionlize the government of this State or of the United States, or shall furnisht armeds or 1lilitarv stores to the enemies of this State or of the lUnited States, knowing tlhell to be suc(h, shlall upon conviction be punished by confinellent ill the penitentiary for nlot less than one nor m1ore than tenl years. SEC. 4. Any person who shall, witlhin the limits of this State, assist in raising the flag of any nation or l)ody of i1men wlho are at \-ar with tlls State or tlc IUnited States, or shall wear any cockad(e, I)adge, or device, intending therel)y to show his sympathy with or his adherence ti) the enemies of this State or the Unite(l States, shall be deemied guilty of a misdemeanor, anll upon conviction before a justice of the peace shall be punished by a fine of not less than twenty-five nor nIore than one hun(lredi dollars. SEC. 5. Whenever either of the criines described in ti}e first, se(col(l, an(l third( sections of this act shall be comnllitted by a citizen of this State, without the linlits of the same, the person charged therewith may be arrested, tried(, anl(l l)unished in any county of this State within the limits of which he mnay be found, and the offense may be charged to have been committe(l in the county in which lie Is arrestetd. REVISEI) LAWS OF LOUISIANA. PRovISIONS OF THE CRIMINAL, COI)E-OFFENSES AG(AINS'r 'rH'E STA'r-E AND PUBLIC JUSTICE. 855. Treason definedl.-Treason against the State shall consist only ill levying war against it, or in adhering to its enemies, giving them aid and comlfort. No persorl shall be convicted of treason unless on the testimony of two witnesses to the same 676 overt act, or his own confession in open court. Whoever shall l}e guilty of the crime of treason, on conviction, shall suffer death. 856. Mi.prision of crimes.-If any person having knowledge of the commiission of any crime punishable with death, or imprisonment at hard lablor, shall conceal and not disclose it to some colmmitting magistrate or district attorney, on conviction lie shall be fined not exceeding three hundred dollars, and imp)risoned at hard labor or otherwise not exceeding twelve months, at the discretion of the court. REVISED STATUTES OF MAINE (1883). TITIE EILEVEN. CHAPTER 11 7.-Qffe,.ses aggainst the sorereignt, of the State. SEC. 1. Treason consists in levying war against the State, adthering to its enemies, and giving them aid and comfort. No person can be convicted of it without the testimony of two witnesses to the same overt act, or confession in open court. Its punishment is imprisonment for life. SEc. 2. Misprision of treason consists in a knowledge that treason has been, or is to be committed, and in the concealment of it, or in omission to give information thereof to the governor, a judge of a court of record, or a justice of the peace. No person can be convicted of it without the testimony of two witnesses, but one of them may testify to one and another to a different overt act of the same species of treason, or )b confession in open court. Its punishment is imprisonment not exceeding five years, or a fine not exceeding one thousand dollars. PUBLIC GENERAL LAWS OF MARYLAND). TREASON. 264. If any person shall levy war against this State, or shall adhere to the enemies thereof, whether foreign or domestic, giving them aid or comfort, within this State or elsewhere, and shall be thereof convicted, on confession in open court or on the testimony of two witnesses, both of them to the same overt act, lie shall suffer death, or be sentenced to confinement in the penitentiary for not less than six nor more than twenty years, at the (liscretion of the court. 265. If any person slall provide or procure.lmoney, goods, or other property, or effects (other than munitions of war) to be used in tle levying of war against this State, or in giving aid or comfort to the enemies of this State, within this State or elsewhere, and be convicted thereof, he shall be sentenced( to inlprisonment in the cormmon jail of the county or city, wherever he may be convicted, for a term not exceeding six nonths, or to a fine not exceeding five hundred dollars, at the discretion of the court; and if the property or effects so providled or procured consist in part or in the whole of munitions of war, the person so providing or procuring such munitions of war shall, on conviction thereof, be sentenced to confinement in the penitentiary for a term not less than six months or more than two years, or to a fine not less than one hundred nor moore than five hundred dollars, at tile discretion of the court; and in any and every case the money, goods, property, or effects, so providled or procured, shall be forfeited to the use of tile State. 266. If any person or persons shall willfully and for the purpose of promoting rebellion or war against this State burn or destroy any bridge, viaduct, culvert, structure, rails, ferryboat, or other property belonging to and being part of any highway or railroad within this State, or engine, car, vehicle, or property belonging to or being part of any highway or railroad within this State, or engine, car, vehicle, or 677 property belonging to or used or ellployed upon any railroad within this State, or shall destrov any daln, lock, abutment, towing-path, wasteweir, or feeder of any canal, or any boat, vessel, or other property belonging to or used or elmployed thereon, within this State, every such person upon conviction thereof shall be sentenced to undergo confinement in tlhe penitentiary for a term not less than two or more than six years, or to a fine of not less than five hundred nor more than two thousand dollars, in the discretion of the court. 267. If any person or persons within this State shall hold( any secret or public meeting, or unite with or belong to any secret club or association known by him or them to be inten(ed to effect, promote, or encourage the separation or secession of this State from the Government or Union of the United States, every such person, upon convliction thereof, shall b)e sentenced to confinement in the penitentiary for a ternm not less than two nor more than six years, or to a fine of not less than five hundred or more than three thousand dollars, at the discretion of the court. 268. If any person shill conspire or combine with others to levy war against this State, or to give aid or comfort to the enemies thereof, whether foreign or domnestic, within this State or elsewhere, and be convicted thereof, lie shall be sentenced to confinellent in the penitentiary for not less than two years nor more than six years, or to a fine not exceeding five thousand dollars, at the discretion of thle court. 269. If, with intent to promote rebellion or war against this State, or to give aid and comfort to the enemies thereof, any person shall attempt to burn or destroy any bridge, ferryboat, viaduct, culvert, structure, rails, or other property belonging to or being part of any highway or railroad, or any engine, car, vehicle, or other property, either belonging to or used or emplloyed upon any railroad within this State; or if any person or persons shall attemplt or conspire with others to (estroy anly (laIn, lock, abutment, towing path, waste weir, or feeder of any canal, or any boat, vessel, or other property belonging to or used or enmploye( thereon within this State, every person so offending, upon1 conviction thereof, sllall be sentenced to confinement in thle penitentiary for a term not exceedling three years, nor less than one year, or fine(l in a sum not more than two thousand nor less than five hundred dollars, in the discretion of tle court. 270. If any person or persons sliall wilfully attelllt or conspIire to betray, vield, or (leliver to any person or persons in rebellion against the goverllmenit of this State, or to their emissaries, ailers, or abettors, any ship, vessel, or steamboat witlil tflis State, every person so offending shall, upon conviction thereof, be sentenced to confinemllent in thle penitentiary for a terim not exceelinlg three years nor less tlhail ole year, or finled in a sum not more than two thousand nor less than five hundred (ollars, il the discretion of tie court. 271. If any person, within tlis State, sllall seduce, eitice, or persuade any other person to commit any one of the offences prohil)ited lby sections 264 to 270, iiclusive, and suchl offence be comnmitted, the said person who so seduced, enticed, or persuaded( shall, onil conviction, b)e sentenced to suffer such Ipunislhmlent as the person0 collmmitting said offence would be liable to suffer as a punishment for the crime so comllllitted by him.l 272. If any person within this State shall attempt to seduce, entice, or persuade any other person to commlnit any of the offences prohibited by said sections, though suc'h offence has not been committed, and slall be convicted thereof, he shall be sentenced to confinemenlt in the penitentiary for not less than two years nor more thlan four years, or to a fine of not lqs than five hundred nor more than two thousand dollars, in the discretion of the court. 678 PUBLIC STATUTES OF MASSACIUSETTS. [Edition of 1882.] OFFENSES AGAINST THE SOVEREIGNTY OF THIE COMMONWEALTH. SECTION 1. Treason against this Commonwealth shall consist only in levying war against the same, or in adhering to the enemies thereof, giving them aid and comfort. SECTION 2. Whoever commits treason against this Commonwealth shall be punished by imprisonment in the State prison for life. SECTION 3. Whoever, having knowledge of the commission of treason, conceals tile same, and does not, as soon as may be, disclose and make known such treason to the governor, or to one of the justices of the supreme judicial court or superior court, shall be adjudged guilty of the offence of misprision of treason, and be punished by fine not exceeding one thousand dollars, or by imprisonment in the State prison not exceeding five years, or in the jail not exceeding two years. SECTION 4. No person shall be convicted of treason but bly the testimony of two lawful witnesses to the same overt act of treason, whereof he stands indicted, unless he confesses the same in open court. (ENERAL STATUTES OF MICHIGAN. CHAPTER 316.-OFFENSES AGAINST TIE S()VEREI(GNTY OF THE STATE. 9072. Every person who shall commit the crime of treason against this State shall suffer the punishment of death for the same. 9073. If any person who shall have knowledge of the commission of the crime of treason against this State shall conceal the same, and shall not, as soon as may be, disclose and make known such treason to the governor thereof, or to some judge of a court of record within this State, he shall be adjudged guilty of the offence of misprision of treason, and shall be punished by fine not exceeding one thousand dollars, or by imprisonment in the State prison not more than five years, or in the county jail not more than two years. STATUTES OF MINNESOTA. [Edition, 1894.] TREASON. ~ 6318. " Trensol " defined.-Treason against the State consists in1. Levying war against the State within the same; or, 2. Adhering to the enemies of the State while separately engaged in war withl a foreign enemy, in a case l)rescribed in the Constitution of the United States, or giving to such enemies aid and comfort within the State or elsewhere. ~ 631 9.-SO oe —Isli., ment. — Whoever commits treason against tllis State slall bie punished by ilnprisonlment in the State prison for life. ~ 6320. Misprision of treasonl,, Iho punished.-Whoever, having knowledge of the commission of treason, conceals the same, and does not, as soon as may Ibe, disclose and make known such treason to the governor or one of the judges of the supreme court, shall be adjudged guilty of the offense of misprision of treason, and be punished by fine not exceeding one thousand dollars, or by imprisonment in the State prison not exceeding five years, or in the colpmon jail not exceeding two years. 679 REVISED CODE OF THE STATUTE LAWS OF MISSISSIPPI. [Edition, 1880.] TREASON. ~ 2965. Levying war against this State, or adhering to its enemies, giving them aid and comfort, shall be deemed and adjudged treason against this State, and shall be punished with death upon conviction thereof. ~ 2966. No person shall be convicted of treason against this State, unless upon the testimony of two witnesses to the same overt act, or on his own confession in open court. PENAL CODE OF MONTANA. TITLE III.-OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE. SEC. 50. Treason against this State consists only il levying war against it, adhering to its enemies, or giving them aid and c6mfort, and can be committed only by persons owing allegiance to the State. The punishment of treason is death. SEC. 51. Misprision of treason is the knowledge and concealment of treason, without otherwise assenting to or participating in the crime. It is punishable by imprisonment in the State lprison for a term not exceeding five years. COMPILED STATUTES OF NEBRASKA, 1899. TREASON. PROVISIONS OF ('ONSTITUTION. SEC. XIV. Treason against the State shall consist only in levying war against the State, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. PROVISIONS OF CRIMINAL COI)E. SEC. 22. (Treason.) Any person or persons residing in this State, who shall levy war against this State, or the United States of America, or shall knowingly adhere to the enemies of this State, or the United States, giving them aid and comfort, shall be deemed guilty of treason against the State of Nebraska, and shall be imprisoned in the penitentiary during life. SEC. 23. (Accessories.) Any person or persons residing within this State who shall surrender or betray, or be in any way concerned in the surrendering or betraying any military post, fortification, arsenal, or military stores of this State, or the Unite(l States, into the possession or power of any enemies of either, or shall supply arms or ammunition or military stores to such enemies, or who shall, unlawfully and without authority, usurp possession and control of any such military post, fortification, arsenal, or military stores, or having knowledge of any treason against this State, or the United States, shall wilfully omit or refuse to give inlformation thereof to the governor, or some judge of this State, or to the President of the United States, shall be imprisoned in the penitentiary not less than ten years nor more than twenty years. PUBLIC STATUTES OF NEW HAMPSHIRE. CHAPTER 279.-TREASON ANI MISPRISION. SECrION 1. If any person owing allegiance to this State shall levy war or conspire to levy war against it, or slhall in any way give ai(l and comfort to the enemies of this 680 State, and shall be convicted thereof, either upon confession in open court or by the testimony of two or more witnesses to the same overt act of treason of which such person may be indicted, he shall be adjudged guilty of treason, and shall be imprisone(d not exceeding twenty-five years. SEtC. 2. If any person shall know that any other person has comlnitted, or is intending to colmmit, treason, and shall not give information thereof forthwith to the governor or to some justice of the peace, he shall be adjud(ged guilty of misprision of treason, and shall he imlprisoned not exceeding seven years, or be fined not exceeding two thousand dollars. SEc. 3. No person shall be tried for treason or misprision of treason unless the indictment therefor is found within two years next after the commission of the offense. REVISION OF THE STATUTES OF NEW JERSEY. [Edition 1877.] CRIMES VHICH INVOLE IINJURY TO PUB LIC SAFETY. [IPage 226.1 1. That if any person or persons, owing allegiance to this State, shall levy war against it, or shall adhere to its enemies, or to the enemies of the United States, by giving thein aid or comfort within this State or elsewhere, or by giving them advice or intelligence by letters or writing of any kind, or by messages, words, signs, or tokens, or in any way whatsoever within this State or elsewhere, or by procuring for, or furnishinlg to them, money, or any kind of provisions, arms, or warlike stores within this State or elsewhere, or by bribery, or for rewar(l, or promnise thereof, or througll favor, partiality, or treachery, yielding or surrendering to them any town or fortress, castles, garrisons, troops, militia, citizen or citizens of this State, or of the United States, or any ship, boat, or vessel of this State, or of tile United States, or by giving themi aid and comfort in any other way, and shall be thereof convicted or attainted on confession in open court, or on the testinmony of two witnesses to the same overt act of the treason whereof he, she, or they shall stand indicted, such person or persons shall be adjudged guilty of treason, and shall suffer death. 2. If any person or persons having knowledge of the commllnissi;n of any of the treasons aforesaid shall conceal and not, as soon as may be, disclose and make known the same to the governor of this State, or to some one of the justices of tile suprellme court thereof, or to some one of the justices of the peace in and for any of tile counties of this State, such person or persons, on conviction, shall be adjudged guilty of misprision of treason, and shall suffer imnprisonmnent at hard labor for any term not exceeding seven years or be fined not exceeding one thousand dollars, or both, at the discretion of the court before whom such offender or offenders shall be convicted. 3. In all cases wherein heretofore any person or persons would have been deemed or taken to have committed the crime of petit treason, such person or persons shall be deemed and taken to have committed the crime of murder only, and shall be indicted and prosecuted to final judgment accordingly, and the same punishmlent, and no other, shall be inflicted as in case of nmurder. 4. If any person owing allegiance to this State shall by speech, writing, open deed, or act, advisedly and wittingly maintain and defend the authority or jurisdiction of any foreign power, potentate, republic, king, state, or nation whatsoever, in and over this State or the people thereof, such person so offending shall, on conviction, be punished by fine or imprisonment, or both, or by fine or imprisonment at hard labor, or both, the fine not to exceed four hundred dollars nor the imprisonment the term of one year. 5. If any person or persons shall, within this State, get up or enter into any combination, organization, or conspiracy, with the intent and purpose of making or attempt 681 ing to make a hostile invasion of any other State or Territory of the United States, or shall engage in plotting or contriving any such invasion, or shall knowingly furnish any money, arms, ammunition, or other means in aid of such object, or shall in any way knowingly and willfully aid, abet, or council any such cobl)ination, organization, or conspiracy, or any such hostile invasion, suclh person or persons sllall be (eemed guilty of a higl mnisdemeanor, and shall, on conviction, be punished by fine or imprisonment at hard labor, or both, the fine not to exceed one thousand dollars and the imprisonment not to exceed the term of ten years. 6. If any person or persons having knowledge of the commission of any of the misdemeanors aforesaid shall conceal, and not, as soon as miay b)e, disclose and make known the sanme to some one of the justices of the peace of the county where the said misdemeanor was comlnitte(l, he or they sallll b)e deemed guilty of a high misdemeanor. andl slall, on conviction, be plunished b1y ine not exceeding four hundred dollars or by imprisonment at hard labor not exceeding one year, or both. PENAL CODE-OF NEW YORK. TITLE IV.-TREASON. SEC. 37. Treason defined.-Treason against the people of the State consists in1. Levying war against the people of the State, within this State; or 2. A combination of two or more persons by force to usurp the government of the State or to overturn the same, shown by a forcible attempt, made within the State, to accomplish that purp)ose; or 3. Adhering to the enemies of the State, while separately engaged in war with a foreign enemy, in a case prescribed in the Constitution of the United States, or giving to such enemies aid and comlfort within the State or elsewhere. SEC. 38. Puiiislhmcn)t of treiaso).-Treason is l)unishable by death. * * * * * -X- * SEC. 169. Consp.liracies (against l)acec, etc. —If two or more persons, being out of this State, conspire to commnit any act against thle peace of this State, thle commission or attempted conimission of which, within tllis State, would bel treason against the State, they are punishable by imprisonment in a State prison not exceeding ten years. PENAL COI)E O()F NORTHI DAKOTA. SEc. 7038'. If two or more persons, being olut of this State, conspire to commit any act against thle peace of this State, the co(ommission or attenmpted commllission of which, within this State, would be treason against the State, they are punishable by imprisonment in the penitentiary not less than one and not exceeding ten years. SEC. 7043. Every person owing allegiance to this State vwho levies war against it, or adheres to its enemies or gives them aid or comfort within this State, or elsewhere, is guilty of treason. No person shall be convicted of treason unless on the evidence of two witnesses to the same overt act, or his confession thereof in open court. Every person guilty of treason shall, upon conviction thereof, be punished by death, or, at the discretion of the court, shall be imprisoned in the penitentiary not less than five years and( be forever incapable of holding any office under this State. SEC. 7044. Every person owing allegiance to this State and having knowledge of any treason against it who conceals and does not, as soon as may be, disclose the same and make the same known to the governor or the attorney-general or to some judge of this State or of some district thereof, or to the State's attorney of some county or a magistrate thereof, is guilty of misprision of treason, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one and not exceeding five years. 682 REVISED STATUTES OF OHIO. [6th edition, 1894.1 OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE. SECTION 6806. Whoever levies war against this State, or the United States, or knowingly adheres to the enemies of either, giving them aid and comfort, is guilty of treason against the State of Ohio, and shall be imprisoned in the penitentiary during life. SECTION 6807. Whoever, having knowledge that any person has comlnitted treason, or is about to commit treason, willfully omits or refuses to give information thereof to the governor, or some judge of the State, or to the President of the United States, is guilty of misprision of treason, and shall be imprisoned in the penitentiary no more than twenty nor less than ten years. GENERAL LAWS OF OREGON. CRIMINAL CODE, TITLE II.-OF CRIMES ANI) THEIR PUNISHMENTS. CHAPTER I.-Of the crimie of treason. 1710. The following acts constitute the crime of treason against this State: 1. Levying war against this State within the boundaries thereof; or 2. A combination of two or more persons, by force, to usurp the government of this State or to overturn the same, evidenced by a forcible attempt mlade within this State to accomplish such purpose; 3. Adhering to the enemies of this State while separately engaged in a war with a foreign enemy, in the cases prescribed in the Constitution of the United States, and giving to such enemies aid and comfort in this State or elsewhere. 1711. To constitute levying war against this State, an actual act of war mnust be committed. To conspire merely to levy war is not enough. 1712. Where persons rise in insurrection with intent to prevent in general, by force and intinidation, the execution of a statute of this State, or to force its repeal, they are guilty of levying war. But an endeavor, although by numbers and force of arms, to resist the execution of a law in a single instance and for a private purpose is not levying war. 1713. Every person convicted of the crime of treason shall suffer death for the same. LAWS OF PENNSYLVANIA. OFFENSES AGAINST TIE STATE. 1. If any person owing allegiance to the Colnmonwealth of Pennsylvania shall levy war against the same, or shall adhere to the enemies thereof, giving them aid and comfort within the State or elsewhere, and shall be thereof convicted on confession in open court or on the testinlony of two witnesses to the salne overt act of the treason whereof he shall stand indicted, such person shall, oni conviction, be adjudged guilty of treason against the Conlnonwealth of Pennsylvania, and be sentenced to pay a fine not exceeding two thousand dollars and undergo an imprisonment, by separate and solitary confinement at labor, not exceeding twelve years. 2. If any person, having knowledge of any of the treasons aforesaid, shall conceal and not, as soon as may be, disclose and mnake known the same to the governor or attorney-general of the State or some one of the judges or justices thereof, such person shall, on conviction, be adjudged guilty of misprision of treason, and shall be sentenced to pay a fine not exceeding one thousand dollars and undergo an imprisonment by separate or solitary confinement at labor not exceeding six years: Provided (lr 7'Cts, That nothing herein contained shall authorize the conviction of any husband or wife for concealing any treasons committed by them respectively. 683 3. If any person or persons belonging to or residing within this State, and under the protection of its laws, shall take a commission or commissions from any person, State, or States, or other enemies of this State or of the United States of America, or who shall levy war against this State or government thereof, or knowingly and willingly shall aid or assist any enemies in open war against this State or the United States by joining their armies or by enlisting or procuring, or persuading others to enlist for that purpose, or by furnishing such enemies with arms or ammunition, or any other articles for their aid and comfort, or by carrying on a traitorous correspondence with them, or shall form, or be in any wise concerned in forming, any combination, or plot, or conspiracy for betraying this State or the United States of America into the hands or power of any foreign enemy, or any organized or preten(led government engaged in resisting the laws of the United States, or shall give or send any intelligence to the enemies of this State or of the United States of America, or shall, with intent to oppose, prevent, or subvert the government of this State or of the United States, endeavor to persuade any person or persons froml entering the service of this State or of the United States, or from joining any volunteer company or association of this State about being mustered into service, or shall use any threats or persuastions, or offer any bribe, or hold out any hope of reward with like intent, to induce any person or persons to al)andon said service or withdraw from any volunteer company or association already organized under the laws of this Colmmonwealth for that purpose; every person so offending and being legally convicted thereof shall ble guilty of a high misdemeanor, and shall be sentenced to undergo solitary imprisonment in the penitentiary at hard labor for a term not exceeding ten years, and be fined in a sum not exceeding five thousand dollars, or both, at tle discretion of the court: Provided, That this act shall not prohibit any citizen from taking or receiving civil commissions for the acknowledgment of deeds and other instruments of writing. 4. If any person or persons within this Commonwealth shall sell, build, furnish, construct, alter, or fit out, or shall aid or assist in selling, building, constructing, altering, or fitting out, any vessel or vessels for the lprpose of making war or privateering, or other purpose, to be used in thle service of any person or parties whatever to make war on the United States of America, or to resist by force or otherwise the execution of the laws of the United States, such person or persolns shall be guilty of a misdemeanor, and on conviction thereof slall be sentenced to undergo solitary imprisonment in the p)enitentiary at hard labor not excee(ling ten y-ears and be fined in a sum not exceeding ten thousand dollars, or bloth, at the discretion of the court. 5. No person shall within this State recruit or enlist, or attempt or offer to recruit or enlist, any man or men to serve as volunteer of any other State, or slall in any way procure or attempt to procure any lman or menl to leave this State for tle purpose of enlisting in the volunteers of any other State; and any person offending in tile premises, or any of them, shall be deemed( guilty of a misdemeanor, and on conviction thereof shall be subject to a fine not exceeding five hundred dollars and be imprisoned at hard labor for a term not exceeding twelve months; and all fines imposed under this act shall be paid to the person who shall have prosecuted the party offending to conviction.. GENERAL LAWS OF RHODE ISLAND. TITLE XXX. —()F (1RIMIES AND) I'UNISHMENTS. CHAPTER 275.-Of ofqlPse. againist the soere'ignty of the State. SECTION 1. Every person who shall be convicted of treason against this State by levying war against the same or by adhering to the enemies of this State, giving them aid and comfort, shall be imprisoned during life. 684 SEC. 2. Every person who shall have knowledge of the commission of treason against this State by leying war against this State or by adhering to the enemies of the State, giving them aid and comfort, and who shall conceal the same, and shall not as soon as may be disclose and make known such treason to the governor or to some magistrate, shall be deemed guilty of misprision of treason against this State, and shall be imprisoned not exceeding twenty years nor less than five years, or be fined not exceeding ten thousand dollars. SEC. 3. No person shall be convicted of treason against this State by levying war against the same, or by adhering to the enemies of this State, giving them aid and comfort, but by testimony of two lawful witnesses to the same overt act for which he shall then be on trial, unless he shall in open court confess the same. SEC. 4. All town meetings of the freemen, inhabitants or residents of tllis State, or of any portion of the same, for the election of any town, city, ward, county, or State officers, called or held in any town or city in this State, except in the manner, for the purposes, at the times, and lby the persons by law prescribed, are illegal and void, and every person who shall act as moderator, warden, or clerk in such pretended meetings hereafter to be held, or in any manner receive, record, or certify votes for the election of any pretended town, city, ward, county, or State officers, shall be deemed guilty of a misdemeanor and shall be fined not exceeding one thousand dollars nor less than five hundred dollars, an(d be imprisoned for a terml of six months: Prorided, That this section is not intended to apply to cases in which, by accident or mistake, some prescribed forms of calling town and ward meetings of the electors of the several towns and cities of this State shall be omitted or overlooked. SEC. 5. Every person who shall in any manner signify that he will accept any legislative, executive, ju(dicial, or ministerial office by virtue of any pretended election in any such pretended town, ward, or other nmeetings, or shlall knowingly suffer or permit his nanme to be used as a can(li(late therefor, shall be adju(lgedl guilty of a high crime and misdemeanor and be fined not exceeding two thousand dollars and l)e imprisoned for tile term of one year. SEc. 6. Every person, except he be duly elected thereto according to tlhe laws of this State, who shall assume or exercise any of the legislative, executive, or ministerial functions of the office of governor, lieutenant-governor, senator, inembler of the house of representatives, secretary of state, attorney-general, or general treasurer of this State, within the territorial limits of tlhe State, as the sanme are now actually had and enjoyed, either separately or with others or hall assenle wit oter for the purpose of exercising any of said functions, shall be imprisoned during life. SEc. 7. Such meetings as are described in section four of this chapter, and also all meetings of persons other than those authorized by law calling thenmselves when (ollected or claining to be the general assembly of this State or either house thereof, are hereby declared to be riotous, tumultuous, and treasonable assemblies, and the commander in chief, the sheriff of any county, or any deputy sheriff, any justice of the supreme court, the mnayors of the cities of Providence and Newport, or in their absence the boards of aldermen of said cities, are hereby authorized and required to conmmand such assemblies or any of them to disperse, and if they do not forthwith obey said command, then, by the civil posse, or, if they deem it necessary, by calling out and using for that purpose the whole or any portion of the military force of this State within their respective jurisdictions that they or either of them may deem sufficient therefor, to disperse such assemblies or any of them within their jurisdictions; and all such officers, civil and military, and persons under their command are hereby directed to govern themselves accordingly. 685 CRIMTINAL STATUTTEI S OF SO ITT CA\ROLINA, (1894). (ON-SPIRA('CY. SECTION 195. If any two or more persons shall blan or conspire together, or go in disguise ulOn. the pulllic hightway or' upon the prenlises of another, withl intent to injure, oppress, or violate tle personi or property of any citizen l)ecause of his political opinion or lis (expression or exercise of the same, or shall attempt, b1y any mneans, measures, or acts, to lhindert, lrevent, or obstruct any citizen in thle free exercise an(d enjolmenl t of any iight (,r privilege secure(l to hilml by the Constitution and laws of the United States or 1w! the constitution and laws of thlis State, such persons shall b)e (leelllel guilty of a felony, and on convic(tilon thereof b)e fined not less thlan one hundred or 111more than tl t o thousan(I (lollars or 1)e imll)risoned not less than six months or miore tlhan three years, or lboth, at tle (liscretion of thle court, and shall thereafter 1le ineligible to an(l disabled fromI holding any office of lhonor, trust, or profit in this State. TINSIRRETI()r(N o() REBELION. SEC. 209. Whenever, bly reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the government of this State, it shall becomie ilnpractical)le, in the judlgment of the governor of the State, to enforce by the ordinary course of judicial proceedings the laws of the State withlin any county or counties of the State, it shall b)e la wful for the governor of the State to call forth the militia of any or all of the (counties il the State and employ such parts thereof as he may deeml necessary to enforce the faithful execution of the laws or to suppress such rebellion. SEC. 213. The governor of the State, when in his judgment the public safety may require it, is hereby authorized to take possession of any or all of the telegralh lines in the State, their offices and al)purtenances; to take possession of any or all railroad lines in the State, their rolling stock, their offices, shops, buildings, anml all their app)endages and appurtenances; to prescrilbe rules and regulations for the holding, using, anld maintaining of the aforesaid telegraph and railroad lines in the manner most conducive to the interest and safety of the Government; to place under military control all the officers, agents, and enmployees l)elonging to the telegraph and railroad lines thus taken possession of, so that they shall be consid(ered a part, of the military establlishmllent of the State, subject to all the restrictions imposed by the Rules and Articles of War. SEC. 214. The governor is authorized to employ as many persons as he may deem necessary and p)roper for the sul)ppression of such insurrection, rebellion, or resistance to the laws, and for this lurpose lie may organize and use them in such manner as he nlay judge best for the public welfare. SEC. 215. If, (luring any insurrection, rebellion, or unlawful obstruction of the laws, as set forth in section 209 of this chapter, the governor of the State in his judgment shall d(eeni the public safety requires it, lie is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the State or any part thereof, and whenever tlme said privilege shall be suspended as aforesaid no military or other officer shall )e comlpelle(l, in answer to any writ of h(tbeaos corptrs, to return the body of anly person or persons detained l.)y him by authority of the governor; but upon the certificate, uinder oath, of the officer having charge of anyone so detaine(l that such person is detained by hinm as a prisoner under the authority of the governor, further procleedings ulnder the writ of lhabeas corp2s shall be suspended by the judge or court having issued the said writ so long as sai(l suspension by the governor shall remain in force and said rebellion continue. 686 CODE OF TENNESSEE. [Milliken and Vertres, 1884.] TREASON. 5518. Every person inhabiting or residing, or voluntarily coming to inhabit or reside, within the limits of Tennessee, owes an(t shall pay allegiance to the government thereof. 5519. Treason against the State consists in the following acts committed by any person residing within the State and under the protection of its laws: 1. Taking a commission from or under the authority of the enemies of the State or of the United States. 2. Levying war against the State or the government thereof. 3. Knowingly and wittingly aiding or assisting any enemies at open war against the State or United StatesBy joining their armies; By enlisting, or procuring or persuading others to enlist, for that purpose; By furnishing such enemies with arms, ammunition, provisions, or any other article for their aid and comfort. 4. Forming, or being in any wise concerned in forming, any combination, plot, or conspiracy for betraying the State or the United States into the hands or power of any foreign enemy. 5. Giving or sending any intelligence to the enemies of the State for that purpose. 5520. Every person so offending, and being thereof legally convicted by the evidence of two sufficient witnesses, or by confession in open court, shall be adjudged guilty of treason against the State, and shall suffer imprisonment in the penitentiary not less than ten or mnore than twenty years. 5521. If any person has knowledge of the comnmission of treason, and conceals the same, or does not as soon as may be disclose such offense to the governor, or some attorney-general or judge of the State, he is guilty of misprision of treason and shall, upon conviction, be fined not exceeding one thousand dollars and imprisoned in the penitentiary not more than five years. SEDITION. 5555. Whoever shall be guilty of uttering seditious words or speeches, spreading abroad false news, writing or dispersing scurrilous libels against the State or General Government, disturbing or obstructing any lawful officer in executing his office, or of instigating others to cabal and meet together to contrive, invent, suggest, or incite rebellious conspiracies, riots, or any manner of unlawful feud or differences, thereby to stir people up maliciously to contrive the ruin and destruction of the peace, safety, and order of the Government, or shall knowingly conceal such evil practices, shall be punished by fine and imprisonment at the discretion of the court and jury trying the case, and may be compelled to give good and sufficient sureties for his or her good behavior during the court's pleasure, and shall be incapable of bearing any office of honor, trust, or profit in the State government for the space of three years. It shall be the duty of the judge to give this in charge to the grand jury, and no prosecutor shall be required to an indictment under this article. 687 STATUTES OF VERMONT (1894). TITLE 32.-CRIMES ANI) OFFENSES. CIIA PTER 211.- Treason. SEC. 4881. A person who, owing allegiance to this State, levies war or conspires to levy war against the same, or adheres to the enemies thereof, giving them aid and comfort, within the State or elsewhere, shall be guilty of treason against this State and shall suffer the punishment of death. SEC. 4882. Such person may be tried in any county in the State, but shall not be convicted except upon testimony equivalent to two witnesses to the same overt act of treason of which he stands indicted, or upon confession in open court. SEC. 4883. A person owing allegiance to this State, knowing such treason to have been committed, or knowing of the intent of a person to commit such treason, who does not within fourteen days from the time of having such knowledge give information thereof to the governor of the State, to one of the judges of the supreme court, or to a justice, shall be guilty of misprision of treason, and shall be punished by iminrisonment in the State prison not more than ten years and not less than five years, and by fine not exceeding two thousand dollars, or either of said punishments, in the discretion of the court. CODE OF VIRGINIA (1887). OFFENCES AGAINST TIHE SIIVEREI(GNTY OF THE STATE. SEC. 3658. Treason de fined; howo prored (in.d punished.-Treason shall consist only in levying war against tile State or adhering to its enemies, giving them aid and comfort, or establishing, without authority of the legislature, any government within its limits separate from the existing government, or holding or executing, in such usurped government, any office, or professing allegiance or fidlelity to it, or resistin the execution of the laws under color of its authority; and such treason, if pro\ved by the testimony of two witnesses to the same overt act, or by confession in court, shall be punished with death. SEC. 3659. Mipisprion of treason; howit pnished.-If any person, knowing of such treason, shall not, as soon as may be, give information thereof to the governor, or some conservator of the peace, he shall be punished by fine not exceeding one thousand dollars or by confinement in the penitentiary not less than three nor more than live years. SEC'. 3660. Attempting, or instigating others, to establish usurped government; how punished.-If any person attempt to establish any such usurped government, and commit any overt act therefor, or by writing or speaking endeavor to instigate others to establish such government, he shall be confined in jail not exceeding twelve months and fined not exceeding one thousand dollars. SEC. 3661. Conspiring to incite the colored population to insurrection against the white population or the white against the colored; how punished.(-If any person conspire with another to incite the colored population of the State to acts of violence and war against the white population, or to incite the white population of the State to acts of violence and war against the colored population, he shall, whether such insurrection be made or not, be punished by confinement in the penitentiary not less than five nor more than ten years. 688 CODE OF WEST VIRGINIA. CrA.PTER CXLIII.-OF ()FEN-(cES AGAINST TIIE SOVEREI(;GNTY OF THIE STATE. 1. Treason against the State shall consist in levying war against it or in adhering to its enemies, giving them ai(l an(l comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession ill open court. 2. Whoever is guilty of treason against the State shall be punished with (leath, or, at the discretion of the jury, by confinement in tile 1)enitentiary not less than three nor more than ten years, and by the confiscation of his real anl personal estate. 3. If any person have knowledge of any treason against the State, and shall not, as soon as may be, give information thereof to the governor or some conservator of the peace, he shall be punished by fine not excee(ling one thousand dollars or })y confinement in the penitentiary not less than one nor more than five years. 4. If any person shall attempt to justify or uphold an armned invaslion of this State or an organized insurrection therein by speaking, writing, or printing, or kby pull)lishing or circulating any written or printed document, or ill any other wal-y -whatever, dluring the continuance of such invasion or insurrection, lie shall b)e finedl not excee(ling one thousand dollars and l)e confined in jail not exceeding twelve months. STATUTES OF WISCONSIN, 1898. PROVISIONS OF THE CONSTITIUTION. Treason.-SEcTION 10. Treason against the State shall consist only in levying war against the same or in adhering to its enemies, giving theni aid and comfort. No person shall be convicte(l of treason unless on the testimony of two witnesses to the same overt act or on confession in open court. STATUTORY PRO()ISION. 7~eas.ROq. —SECTION 4510. Any person who shall be guilty of treason against thle State shall be punishel 1by imnprisonlllent in the State prison for life. This comparison is confined to the existing laws of the United( States and States of the Union. There are a number of obsolete enactments with whichl comparison llight be madle. During our entire llistory, whenever there has been in any coillnunlity a class from whose actions or utterances danger might reasonal)ly be apI)rehended, tile legislative d(iscretion has never hesitated to providle a means of plrotection; as, for instance, the legislationl against the Tories during the Revolutionl; that against renegade white nlen who i(cited the In(lians to outbreak and mIassacles; tllat against thle negroes of the South during the years they were held in slavery; that against the Knights of the (olden Circle and similar secret societies durillg the civil -war, anl1 the several measures now pending in Congress to prevent the l)romlotion of anarc(hy by seditious utterances. Respecctfully submitted. C0HARLES E. IA(;AGOON, Law Officer, niciiso oi 0 IJnsular Afitirs. 689 INSURRECTION AGAINST THE MILITARY GOVERNMENT IN NEW MEXICO AND CALIFORNIA, 1847 AND 1848.'" [Submitted May 31, 1900. Irinted as a Senate document by order of the Senate, Fifty-sixth Congress, first session, Doe. No. 442. Case No. 141, Division of Insular Affairs, War Department.] SIR: I have the honor to call your attention to the official reports of the officers of the United States Army who conducted the military operations for the suppression of the insurrection against the military government established by the United States in New Mexico and certain details connected therewith. Historical writers have given scant attention to the incidents referred to, probably because they were far removed from the locality in which occurred the more stirring events of the same period. But the questions now occupying the public mind give new interest and increased value to these almost forgotten incidents in our national history. The conquest of New Mexico by the military forces of the United States was accomplished by the campaign of 1846. (Leitensdorfer v. Webb, 20 How., 176.) In compliance with instructions given by the President, the officer in command, General 4Cearny, organized a civil government for the occupied territory, and filled the executive and judicial offices by appointment. These civil functionaries thus appointed entered upon the discharge of their duties in apparent unconsciousness of exposure to more than ordinary peril. In December, 1846, the native inhabitants organized a conspiracy to overthrow the United States authority in New Mexico. On the night of January 15, 1847, the governor, Charles Bent; the sheriff, Stephen Lee; the circuit attorney, James W. Leal; the prefect, Cornelio Vigil, and a number of others, citizens and officials of the United States and Mexican supporters of the United States authority, were assassinated in the town of San Fernando de Taos. On the same night seven other Americans were killed at Arroya Hondo and two at Rio Colorado. It was soon apparent that the insurrection was general and the purpose was to kill all the Americans and those Mexicans who had accepted office under the American Government. Col. Sterling Price was then commander of the army in New Mexico, with headquarters at Santa Fe. He learned of the uprising and attendant atrocities on Januatry 20, 1847, and that the army of insurrection was marching on Santa Fe and the force increasing by enlistments of the inhabitants along the line of march. He deemed it advisable to "See Rep. Campaign Text Book, 1900, pp. 90, 91. 1394-03 44 690. engage the enemy as soon as possible. He detached a force of about 400 men of his command and marched to meet the approaching insurgents. He found the insurgents posted in a strong position on the heights and in the houses below on the outskirts of the village of Cafada. The Americans immediately formed in line of battle. The enemy discovered that Colonel Price's artillery and wagon train was some distance in the rear and attempted to capture it, but the attempt was frustrated. The artillery coming up, the battle was opened with a cannonade and general firing, which lasted for about two hours. Colonel Price - then ordered an assault on the position held by tle enemy opposite his right flank. The assault was successful and the enemy dislodged. Thereupon Colonel Price ordered a general assault, which was also successful, and the enemy retreated. The approach of night and the character of the ground prevented pursuit. The American loss in killed and wounded was 8 men, among then First Lieutenant Irvine. The Miexican loss was 36 killed; wounded not ascertained. The next morning the enemy were found to have taken a position on some heights not far distant, but on the approach of the Americans the insurgents retreated. On the 29th of January, 1847, the Americans again encountered the insurgents at Embudo, a strong pass in the mountains, through which the men could scarcely march three abreast. Between six and seven hundred of the enemy were posted along the slopes of the mountains, and there they were attacked by a detachment of 180 men under Captain Burgwin, who dislodged them with a loss to the Mexicans of 20 killed and 60 wounded. The American loss was 1 killed and 1 severely wounnded. On the 1st of February, 1847, the main body, under Colonel Price, reached the top of Taos Mountain, which was covered with snow 2 feet deep. The marches of the 1st and 2d of February were through this snow, the men being marched in front of the artillery and wagons in order to break a road. On the 3d the American force marched through Fernando de Taos, the town in which Governor Bent and party had been seized and atrociously murdered. The town had been abandoned by the enemy, who had taken a position at the near-by town known as Pueblo de Taos. That was a strongly fortified point. The key to the position was a large church and two large buildings ascending in a pyramidal form seven stories high and pierced with embrasures for rifles. Around these was a wall, and within them the enemy had taken position. The Americans brought up their artillery and battered the church and walls for two hours, but the cannonading was ineffective and the Americans retreated to Fernando. 691 Onl tile morlning of February 4, 1847, tile Amelricans again advanced to renew the Iassault. The airtillery was brought to bear against the two sides of the churchl. After battering it for two hours, a cllarge was Imade under the leadership of Captain Burgwill of the First Dragoons. In this assault Captain IBurgwin and several of his men were kill(d, but the assault wIas unavall iling. Thell chiiurclh walls were still npllenetrated b)y the -artillery. Ladders were then lmade and holes cut in the wall with axes, through which the soldiers with their hands threw fire and lighted shells into the church. Another assault was mlade on the chllrch door, which agailt failed with loss. The artillery was then brought tip within )0 yaLrds, and after 10 rounds one of the holes which had been cut with the axes -was widened into Ca practicable breach, through which a storming l)arty entered, dislodged the enemlly, and took possession of the cllurch. This ended the hostilities of the day. The enemy still occupied the two large buildings. The next lorning' the enemy surrendered. The number of insurgents engaged( in thlis fight was b)etween 600 and 70). The loss sustained by them was tlabout 150( killed. The nunmber wounded is not knownl. T'le American lo: in killed and wounded was 52. Under date of January 23 Cal)taiii Hendlev-, commandidi ng at L.:: Vegtas, N. MAex., reported to Colonel Price aIs follows: Every town and village excetpt this (I (lil not give it time) and Tucoloti rhave declared in favor of tle insurrection. Thle whole population appear ripe for the insurrection. On July 301, 1847, Colonel lPrice, dilpartmeilt commlander, repl)ted to the S.ec retarv of \Aar tls follows: It is certain that tthe New MAexicans entertain (leadly llatred( against thel Americans, andl tllat they will cut off small l)arties of the latter whlncver they think they c(an escape dletection. The insurrection ill eastern -New -Mexic(o was iiaugurated )by killing eight Almericans at MIora oni Januarty 20, 1847. II, p1utslIance of his duty to suppress the inlsurrection in that locality, Captain HIendley concentralted his grazing guards aIt Las Vegas, and onl January 24, 1847?, proceeded inl force to Mora. Ile found a body of Mexicans in arms, prepared to defend the town. A general engagement ensued, the Mexicans retreating and firingr froml the windows of the houses. A body of insurgents had taken possession of an old fort and opened fire upon the Americans. Captain Hendley succeeded in taking possession of a part of the fort and was preparing to burn it when he fell mortally wounded, dying in a few ninutes. The Americans, havingr no artillery with which to reduce the fort, retired to Las Vegas. In the battle of Mora the insurgents suffered a loss of 25 killed and 15 taken prisoners. The American loss was 1 killed and 3 wounded. Later in the season Captain Morin, who succeeded Captain Hendley, renewed 692 the attack upon i\ora with a body of men and artillery and razed the towns (Upper and Lower Mora) to the ground. The principal leader of the insurrection was Manuel Cortez. After the defeat at Pueblo de Taos, Cortez fled across the mountains into eastern New Mexico and continued the hostilities. In May, 1847, a wagon train and a grazing party were attacked by the insurgents and one or two men killed and a large number of horses and mules captured. Major Edmonson pursued this force and encountered them, nearly 400 strong, in a canyon of the Red River. The American forces engaged them, but after fighting several hours, and succeeding in killing and wounding many Mexicans, were unable to dislodge the enemy and retired. The next day he found the enemy had fled during the night. In June, 1847, the insurrection affected Las Vegas. Lieut. R. T. Brown and 3 soldiers were killed. Thereupon Major Edmonson lmade an attack and killed 10 or 12 men. He also found evidence of a new revolt and captured the town, sent about 50 citizens as prisoners to Santa Fe, and burned a mill belonging to the alcalde. whom he thought was implicated in the revolt. In July, 1847, a party of 31 American soldiers was attacked at La Cienega, and Lieutenant Larkin and 5 other men were killed. On the approach of reenforcements the insurgents fled and were not apprehended. During the month (July, 1847) Major Edmonlson is said to have destroyed the town of Las Pias, with considerable loss to the insurgents, an(l to have marlched by way of Anton Chico to La Cuesta, where were about 400 insurgents under Cortez. Fifty prisoners were talken, the main body of the enemy escaping into the mountains. Thereafter the insurrection dwindled into depredations committed by various bands of Indians, instigated and led by Mexicans. Hardly a party, large or small, traders or soldiers, crossed the plains of New Mexico without being attacked. Many men were killed and large numbers of horses, mules, and cattle driven off. A company of dragoons escorting Government funds lost 5 men1 killed anld all their animals in June. In the latter part of 1847 comparative safety was secured by stationing troops at various points. Of the insurgent prisoners, 15 or 20, perhaps more, were tried by court-martial, sentenced to death, and executed.. The others were turned over to the civil authorities of the military governmlent for trial in the civil courts. The grand jury indicted 4 of them. The others were discharged for want of evidence or pardoned by the governor. The 4 indicted wlere charged with treasorf against the United States Government. One was tried by a jury and convicted. The prisoner challenged the jurisdiction of the 693 civil court and assailed the indictment on the ground that he was not a citizen of the United States nor bound to yield allegiance to that Government. Strong pressure was brought to bear in his behalf, and the district attorney, Mr. Blair, referred the matter to Washington for instruction. Mr. Marcy, Secretary of War, advised the President as follows: OC)n the 26th of June, 1847, 1 wrote to the commanding officer of Santa Fe a letter (a copy of which accompanies this communication) in which the incorrect description of the crime in the procee(lings of the court is pointedl out. It is therein state(l that "the territory conquered b)y our arms does not b)econle, )by the mnere act of conquest, a permnanent pIart of the,United States, and the inhabitants of such territory are not, to tile full extent of the terml, citizens of the United States. It is beyond dispute that on the establishnlent of a temporary civil government in a conquered country the inhabitants owe obedience to it and are l1ound by the laws which may be alo)pted. They Illmax )e tried and l)unished( for offenses.. Tliose ill New Alexico who in the late insurrection were guilty of mnurder, or instigatedl others to that crimle, were lial)le to be punished for these acts, either by thle civil or Ililitary autlhority, but it, is not the proper use of legal terls to say that thleir offenses were treason ( o11 -mIitted against the United States; for to the (;overnmlent of the United States-as thle Goverrnment under our Constitution-it would not b)e correct to say thlat tlhev o wed allegiance. It appears >by the letter of Mr. Blair, to whiclh I have referred, that tlhose engaged( in tile insurrection have )eenll pro'ee(led against as traitls to to tle lI'itedl States. In this respect I think tlhere w-as error, so far as relates to time designation of tile offese. Their offense was against the templorary civil go,'vernment of New Mexico( andl the 1aws- providedl for it, whicll tliat governmlent had the right and, ind(eed(, was bounll to see executed." For this reason the President decclinecd to exercise the power to pardon vested in hilll as the chllief civil mlagistrate of the United Statces, but, as comman1der in chief of the Army, authorized the military goveirnor to use his discretion in the matterl, and the prisonler was pardoned by the governor. The events resulting f lron this insurrection did not escape the attention of Congress. That t)ody, on July 10, 1848, passed a resolution calling upon the President for information in regard to the existence of civil governments. in New lMexico and California; their forml and character, by whoml instituted and b1 what authority, anld how they were inaintained and supl)orted; also whether any personls had been tried and condemned for "treason atgainst the United States" inl New:MAexico. President Polk replied to said resolution by message (dated July 17) received July 24, 1848, in which he discusses the character of military government, taxking the position that such a government may exercise the " fullest rights of sovereignty." (See Ex. Doc. No. 70, first session Thirtieth Congress.) 694 THE INSURRECTION AGAINST THE MILITARY GOVERNMENT IN CALIFORNIA. The inhabitants of California at various places rose in revolt against the military government established over them, but with less sanguinary results than followed a similar insurrection iln New Miexico. California was conquered and became subject to military occupation and government by the force-s of the United States in 18461. (Cross '. IIarrison, 16 How., 190.) At Los Angeles and other points, the United States flag was torn down, and that of Mexico was hoisted in its place. In November, 1846, an action occurred at I)omingos Rancho, between a party from the United States frigate Savanc nak and a body of Californians. The latter were fortified and supported by artillery. They g'ained an advantage over the sailors which raised their courage and excited their hopes. In December, 1846, Commodore Stockton landed at San Diego, and advanced to Los Angeles and reestablished American dominion a-nd military government. Soon after this a battle occurred between the Americans under General Kearln and the Mexicains ait San Gabriel. In this engag'ement the Mexicans were defeated with loss, but on the American side several were killed and General Kearln wounded. (See Mansfield's Mexican War, p. 1(02.) On Mlay 30 18, 18, (eneral Kearnv wrote to Colonel Burton, in command at Santa Barltlara: It is understood that the people of Lower California have not the power, if they possessed thle disposition, to resist your command, but you must not on that acccount allow the discipline of your soldiers to relax, lbut lhol tlhem at all times ready to resist or make an attack. (See Senate I)oc. No. 18, p. 294, Thirty-first Congress, first session.) On June 18, 1847, Colonel Mason, colmanding Tenth Military Department (California), reported to the Adjutant-General United States Armnv: Tlie country still continues to I)e quiet, and I think will remain so, though the peoIle dislike the change of flags, whatever may be said or written to the contrary, anl in the southern part of Ut)pper California would rise imlmediately if it were possil)le for Mexi(o to send(l even a small force into lthe conntry. Nothing keeps tlhemn quiet but the want of a proper leader' and a rallying point. I send you a map showing t}le positions occuplied 1by tle troops, tlhe nlumber at each station, and the estimated distance between the posts. You will perceive they are pretty well stretched out, but under existing circumstances it can not well be avoided. We must keep up a show of troops, however small in numbers, at the different points occupied. (Id., p. 297.) About this time there came into notice one IlMauricio Castro, who seemed calculated to become the recognized head of the insurrection; but he was captured at San Jose in April, 1848. Colonel iBurton refers to him as "the self-styled political chief of Lower California." B( 9)5 (See report of April 13, 1S4iO, Senate Doc. No. IS, first session Thirtyfirst Congress, p. 497.) By January, 1848, the aspect of affairs became so serious that Colonel Masonl, the llilitary governor of California, determined to raise a regiment of volunteers for the protection of the government of which he was the head. On January 2X, 1848, Colonel Mason wrote to Governor Aberneth-, of Oregon: F;rom intelligence receiveld here yesterday from Collnander Shubrick * * * I deeml it of the utmost imlportance to raise a corps of 1,000 men to send to Lower California aml lManzatlin as early as practicable. (1T., p. 443.) On the same day, in a letter addressed to Messrs. Swift, Ford & Thompson, Colonel Mason says: I'ronl intelligence received here yesterday from Commnodore Shubrick, who took aInzatlin on the 11th of November, it becomes of the greatest importance to selnd him a land force as early as practicable, to enable the United States to hold that port and the ports of La Paz an(t San Jose iin Lower California. * * * Without the aid of this land force, thle Commodore writes that the United States flag at San Jose anid Manzatlin will be hauled down. (Id., p. 445.) On August 1t;, 1848, Colonel Mason reports to (Gen. R. Jones, Adjutant-General, Washington, D. C., as follows: HtEA)QUARTEIS TEN-THII MIILITARY DEPARTMENT, )l3onterey, Cal., A ugust 16, 184S. SIR: I have the honor to inclose you herewith copies of reports lla(de lby LieutenantColonel Burton and( the officers under his coimmand, tile originals of which were received by me on the 15th of June last. These give a listory of the suppression of the insurrection in the peninsula, which in its entire mnallgelmellt reflects high credit upon all concerned. I can only draw your attention to the reports of Lieutenant Hey-wood's defense of San Jose; Captain Steele's rescue of the American prisoners at San Antonio, and of Lieutenant-Colonel Burton's attack upon the enemy at Todos Santos. The official documents, copies of which and extracts from which are herewith presented, are much more interesting than this inadequate sketch of their contents. REPORTS AND PROCLAMATIONS REGARDING THE INSURRECTION AGAINST THE MILITARY GOVERNMENT IN NEW MEXICO. President Polk, in his message to Congress dated July 24, 1848, sleaking with reference to New Mexico, says,: Whilst this Territory was in our unquestioned possession as conquerors, with a population hostile to the United States, which more than once broke out in open insurrection, it was our unquestionable duty, etc. (Richardson's Comp. Messages of Pres., vol. 4, p. 597.) [Report on discovery of conspiracy by Governor Bent.] SANTA FE, N. MEX., December 26, 1846. SIR: I have been informled indirectly that Col. A. W. Doniphan, who, in October last, marched with his regiment against the Navajo In(lians, has made treaty of peace 696 with them. Not having been officially notified of this treaty, I am not able to state the terms upon which it has been concluded; but, so far as I am able to learn, I have but little ground to hope that it will be permanent. On the 17th instant I received information from a Mexican friendly to our Government that a conspiracy was on foot among the native Mexicans, having for its object the expulsion of the United States troops and the civil authorities from the Territory. I immediately brought into requisition every means in inv power to ascertain who were the movers in the rebellion, and have succeeded in securing seven of the secondary conspirators. The military and civil officers are now both in pursuit of the two leaders and prime movers of the rebellion; but as several (lays have elapsed, I am apprehensive that they will have made their escape from the Territory. So far as I am informed, this conspiracy is confined to the four northern counties of the Territory, and the men considered as leaders in the affair can not be said to be men of much standing. After obtaining the necessary information to designate and secure the persons of the participators in the conspiracy, I thought it advisable to turn then over to the military authorities, in order that these persons might be dealt with more summnarily and expeditiously than they could have been by the civil authorities. The occurrence of this conspiracy at this early period of the occupation of the Territory will, I think, conclusively convince our Government of the necessity of maintaining here, for several years to come, an efficient military force. * * * * *-X- * * C. BENTr. HIon. JAMES BUCHANA-N, Secretary of State of the United States. [Report on the inception of hostilities and assassination of Governor Bent. (Senate Doe. No. 70, first session Thirtieth Congress, p. 18.)] SANTA FE, Iebr't.t I', 1847. SIR: It becomes my melancholy duty to announce to you the death of his excellency Charles Bent, the governor of this Territory. On the morning of the 19th ultimo lie was assailed in his private dwelling, in the town of Don Fernando de Taos, by a company of Indians of the Taos Pueblo, in company with a number of the Mexican inhabitants of the town, and put to death with all the horrible details of savage barbarity. There were murdered during the same and following day 12 other Americans and 2 Mexicans in the valley of Taos, among whom were James W. Leal, circuit attorney for the northern district; Stephen L. Lee, and Cornelio Vigil (Mexican), sheriff and perfect of the county of Taos. After the murder of G(overnor Bent most of the lower order of Mexicans of the valley of Taos and of the small towns in the vicinity rose en mnasse and joined the Pueblo Indians in the work of pillage and murder. They organized themselves into a revolutionary army, appointed their leaders, and sent circulars to different parts of the Territory to excite the people to rebellion. Detachments from the rebels fell upon the settlement of the Pofiil, where most of the Government stock was herded, all of which they (trove off, and upon the town of Lode Mora, where they murdered 8 Americans. The main body of the insurgents, numbering from 1,500 t,) 2,000 Mexicans and Pueblo Indians, advanced toward Santa Fe, forcing into their ranks many of the better inclined on their route. Upon the first intelligence of their movements and outrages Col. Sterling Price promptly made preparations to mnarch against them. Colonel Price marched from this capital toward Taos on the 23d ultimo with a force of about 400 men, with four pieces of artillery, and encountered the enemy on the 24th and 29th at Law Cafiada and La Embuda, each time defeating them with 697 considerable loss. He entered the town of Doll Fernando on the evening of the 3d instant and immediately attacked the Pueblo town, lying about two mniles fronm Don Fernando, a stronghold of the Pueblo Indians, into which all the Indians and all the Mexican insurgents who had not dispersed after the previous 1)attles had thrown themselves for a last desperate struggle. They defended the town with great bravery, but the incessant and gallant charges of Colonel Price's command( succeeded in taking it oil the evening of the 4th instant. Wl;at remained of thle Pueblo surrenderedl at that tine at discretion, agreeing to deliver up their leader in the rebellion, who was brought in, (lelivered up in two or three days afterwards, and was unfortunately shot by an exasperated soldier while under charge of the guard. ()f the 4 principal leaders of the revolt 2 were slain in battle, 1 was taken and hanged utnder sentence of a court-miartial, and 1 survives, andl hlas not yet been taken. A small detachment of troops stationed near Lod(e Mora, inll consequence of the nmuuller of the S Americans there, dispersed and slew a number of the insurgents andl utterly destro-yed the town. Soine 50 prisoners have been retainedl by the military and civil authorities for trial as teilg deeply implicated in the insurrec tion, anul I (leein it of the highest impiortance to, the future peace alnd safety of the Territory that they should be dealt with according to the severest penalties of the laws of the Unitedl States when prove(l guilty as perpetrators of or pIarticipators in tile late bar,arous outrages. The dletails of the military operations consequent ul)oll the late dlisturl)ances will, no dloublt, he communicated to the proper departnle t by the colonel commanl(ling Thre 1osses sustaine(l by Americans and other citizens by pillage during the latte insurrections is estimlated to lbe over $100,000. The rebellion seeIns to bet crushed(, but fro 111my exerielnce of tle character ailmI (lislosition of this people I ap)l)rehend that, should our arIns meet with a rev\-erse in Chmihuahua or elsewhere south of this Territory, it would be the signal of another outbreak. * * * -* * * * )oNACIANO VIGIL,,S'ccretary o!f Territoryi'. -I011. JAlMES BIUCI-I.NAN,,S'ecretarly (t-,fSftat, off tlhe t.)i Stael ~ tes. [Report of Colonel Price oni the hostilities ill vicinity o1f Salntat Fe. Records Wair Dc1)mrtmlleint.] lIEADjt:UAirrtsti At.~ iN NEw MI EXXIcO,,%(mta b F', l,3},br(tr.~! 1,:, 1847. Sin: I have the honolr to subuiit to you a short account of the recent revolutions in this Territory anld a detailed report of the operations of the forces unlder lxy commaind and conseqluent iupon the rebellion. Ab)oult the 15th of December last I received information of an attempt to excite the people of this Territory against thle American (overnment. This rebellion was heade(l by Tomias Ortiz and I)iego Archuleta. Ant officer formlerly in the NMexican service was seized, and on his person was found a list of all the disbanded Mexican soldiers in the vicinity of Santa Fe. Many other persons suIpposeil to be iniplicatedl were arrested, and a full investigationi proved that many of the Illost influential persons in the northern part of this Territory were engaged in the rebellion. All attempts to arrest Ortiz andl Archuleta proved unsuccessful, and these rebels have without doubt escal)e(l in the direction of Chihuiahlua. After the arrest above mentioned and ttIe flight of Ortiz and Archuleta the rebellion appeared to be suppressed, b)ut this appearance was deception. ()n the 14th of January Governor Bent left this city for Taos. On the 19th of the same month this valuable officer, together with 5 other persons, were seized at Don 698 Fernanlo (le Taos 1)v the Puebllos andl Mexicans and were lnurdererd in the most ilnhumnan lanner the savages could devise. On the same day 7 Amlericans were murdered at the Arrovo TIondo andI 2 others at the Rio Colorado. The names of the unfortunate persons thus blrutallv l)utchered are as followNs: At Don Fernando de Taos: Chllarles Bent, governor; Stephen Lee, sheriff; James WV. Leal, circuit attorney; Cornelio Vigil (a MIexican), pIrefect; Narcues Reaubien, son of the circuit judge; Parbleau I-Iarvinislsh (a Mexican). At the Arroyo Hondo: Simeon Turley, Albert Turlush, lWilliami Hatfield, L,ouis' Tolque, Peter Robert, Joseph Marshall, and William Austil. At the Rio Colorado: Mark Iead and William Harwood. It appeared to b)e the object of tile insurrection to lput to deateh every American an(l every Mexican who had accel)ted office uln(er the American Governlment. News of these events reached me on the 20th of Januar-, alnd letters from the rebels, calling upon the inhabitants of the Rio Abajo for aid, were intercepted. It was ascertained that the enemy was a)proaching this city, and that their force was continually being increase(l by the inhabitants of the towns along their line of Inarch. 11n ordler to prevent the enemy from receiving any further reenforcellents ill that manner, I (letermine(l to meet them as soon as I)ossible. Supposing that the detachment of the necessary troops would weaken the garrison of Santa Fe too imuch, I immne(liately ordered up froin Albuquerque AMajor Edmonson, Second Regiment Missouri Mounted Volunteers, and Captain Burgwin, with their resl)ective commands, directing Captain Burgwin to leave one comalany of dragoons at this post and to join me with the other. Major Ednlonson was directed to remain in Santa Fe. Captain (Giddlings, 'Company A,,;econd Regiment Missouri MIolnted \Volunteers, was also ordere(l to join me with his comnpany upon the arrival of Captain Burgivwin. Leaving Liettenant-Colonel Willock in c0ommlllland of this post, on the 23(d of January I marched froln this i)lace at the head of Companies D, Captain MeIMillin; K, Captain Williams; L, Captain Slack; MI, Captain Halley, and N, Captain Barl)er, of the Second Regiment Missouri Mounted Volunteers; Captain Angney's battalion of infantry, an(l a companyii of Sanita Fe volunteers, comlnanded by Captain St. XVrain. I also took with me four Inountain howitzers, which I placed under the command of Lieut. A. B. J)yer, of the ordnancee. M\y - whole force composed 353 rank an(1 file, and, with the exception of Captain St. Vrain's company, were all dismiounted. O)l the march Captain Williams was taken sick, and the command of Company K devolved upon Lieut. 1B. Y. White. O)n the 24th of January, at lalf-last 1 1). ni., our advance (Captain St. Vrain's company) discovered the enemy in considerable force near the town of Cafiada, their position at that tille 13eing in the valley b)ordering the Rio del Morte. Preparations were imnmediately made by ine to attack them, and it became necessary for the troops to march more rapidly thani the alinunitioni and( provision wagons could travel in order to prevent the escape of the elelmy or to frustrate them in any attemlpt they might make to occup)y commanding positions. As I entered the valley I discoverel tlhen beyond the creek on which the to\vn is situated and( in full possession of the heights comninan(ling the road to Cafiladla and of three strong houses at the l)ases of the hills. My line of battle was illmediatel]y formed. The artillery, consisting of four 12-pound mountain howitzers, being thrown forward on the left flank and bleyond the creek, the disnlounted lmen occupying a I)osition where they would, be in soine degree plrotectedl by the high bluff banik of the streanm from the fire of the eneimy until the *wagon train coul(l ble b)rought ulp, the artillery opened( on the houses occupie(l by tile eneimy and o(, the mlore distant height on which alone the guns could b) broughlt to bear. The enemly discovering the wagons to b1e mnore than a imile in thie rear sent a large party to cut them off, and it becamle necessary to detach Captain St. Vrain's coinpany for their protection. This service was rendered in the inost satisfactory maaniuer. As soon as the Nwagon train haid been brotught up, 1 ordere(l Captain Angnev to charge with his battalion of infantry, and dislodge the enenmy fron the house opposite 699 the right flank, a ad from- which a wAarm fire was being pouredl on us; this was dlone in the most gallantimanner. A charge w-as thienor(Iered to bemiadle upon all thlepoints occupiedl by the enemy in any' force. Captain Anignev with his command, slulportedl by Lieutenant White's Company, charged up one hill, while, Captain 'St. Vramn's company turned1 the same in order to (cit off the euiemy whlen in retreat. The artillery, supported by Captains MNc.1illen, Barber, and Slack, with their respective coinlpanies, at the samne time took posses-sion. of some houses (inclosed hy a strong corral (densely woodled with fruit trees, from which a brisk fire was kept up lby the eneimy) and of the heights beyond themn. Captain Halley's conipauvy was ordleredl to support Captain Angney. In a few minutes my troops hiad dIislodgred( the enemy at call points, an(I they were flying in every dlirectionm. The nature of thle ground rendered lpursuit hopeless, aimi it being nea~r night I ordered the troops to take uip quarters in the town. The niuimber of thle enemy was about 1,500. Lieute~nant Irvine wNas woundled. 'Iii thme c harge my loss. was 2 killed anlI 6 wounded; of the killed 1 was a tearmster who volunteered in Captain Angney's com-pany. The loss of the enemny was:36 killed; wounde(1 niot,ascertaiie(1. The next morning- the enemy showed themnselves in som-e force (I think not less than 400) on the (histant heights. Leaving a strong guardl in the town, I marched in pursuit of them; b)ut they were so shy and retreated so rap)idly that, fiinlig it. impossible to get near t hem, I returned to towii. While at Cafliada a numbler of the horses lbelonging to Calptain Slack's com~pany were brought in 1)N Lieutenant 1101(0mb. Onl the 27th I advanced upl the Rio dlel Morte as far as Luceras, where, early onl the 25th, 1. was joiiiel by Captain Burgwin, commnandlinig Company G(, First Dragoons, aiid Comnpany A., Second Regimient Missouri Mounited Volunteers, commiandIed byvIdeutenant Boone. Cap~tainiBuirgw~iii's ~commnianil wias (lismiounitedl, ani(lgreat credlit is (lie to him amid his othecers andl men. for the rapidity with which a mmarchm so long and arduious was perform-edl. At the same time Lieutenant Wilson, First lDragoons, who had volunteeredl his services, caiie up with a 6-poundler which had ibeen sent for fromt Cafiaada. MN~v whole force nowv com-prised 479, ranik and file. Onl the 29th 1 miarclied to L-a Ioya, where I learned that a party 6f 60 or 50 of the eme-mv had lpostedl themselves on the steep slopes o)f the inotmmtaiiis which rise on each side of the canyon or gorge which leads to Emnibu(lo. Finding thle road iby Embtil(lo immplracticable for artillery or wvagons, I (let ached Captain Buirgwin in that (lirection withi his owni comipaanv of dragoons andl the companies couimanded by Captain St. Vrain an l ieutenant White. This dletachment conmhrised 150, ramik and file. By uimy permmissiomn Adijt. R. Walker, Second Regiment Missouri MNountedl Volunteers, accompanied Captain Burgwvin. Lieutenant. Wilson, First Dragoons, also I-6lunteered his tservices as a lirivate in Captain St. V'raim's companiy. Captain JBurgwhi, pushing forw\ard, dliscoveredl tile enemly to thle numbl.er of between six and seven hundlred postedl on time sidles of the mi-ountains just w-here thle gorge becomes so contract~e(h as scarely to admnit of three mien. marching abreast. Thme rapid slopes of the mountains rendered the enenmy's position v-e-rV str-onv, andI its strength was incm-easedl iy thle dense masses of cedar and large fragments of m'ock which everywhiere offeredI theim shelter. The ad ion w\as commenced by C.l taml St. Vrain, who, dismiounting his men, ascended tIme imountain onl time left, doionv mudic executionm. Flankimng Imarties wvere th rowyn out onl emthei side, commanidedl, reslpecti-el v, lhv Lieutenant White, Secomid Regiment Missouri NMounted Vol unteers, and byv Lieutenants MNcllvaine and Taylor, First Dragoons. riese p~arties asceuuded thle hills rapmdllv, aind time emmmnv soon begain t~o retire in the (direction of Embudo, bounding alonig the steep amid rugged sides of tile mountain with a speed that defied pursuit. The firing at the pass of Emnbudo had beenl heard at La.Joya, and (-Captain Sqlack, wvithi 2.5 mounted1 memi, had 'beeln im-mediately dispatched thither. lie now arri\ved andi rendlered cxc& lemnt -(rvice by relieving, Lieutenant White, wkihose men 700 were much fatigued. Lieutenants Mcllvaine and Taylor were also recalled, and Lieutenant Ingalls was directed to lead a flanking party on the right slope while Captain Slack performed the same duty on the left. The enemy having by this time retreated beyond our reach, Captain Burgwin marched through the defile, and debouching into the open valley in which Embudo is situated, recalled the flanking parties and entered that town without opposition, several persons meeting him with a white flag. Our loss in this action was 1 man killed and 1 severely wounded, both belonging to Captain St. Vrain's company. The loss of the enemy was about 20 killed and 60 wounded. Thus ended the battle of the Pass of Embudo. On the 30th Captain Burgwin marched to Trampas, where lie was directed to await the arrival of the main body, which, on account of the artillery and wagons, was forced to pursue a more southern route. On the 31st I reached Trallpas, and, being joined by Captain Burgwin, marched on to Chamisal with the whole comlland. On the 1st of February we reached the sulmmit of the Taos Mountain, which was covered with snow to the depth of 2 feet, and on the 2d quartered at a small village called Rio Chicito, in the entrance of the valley of Taos. The marches of the 1st and 2d were through deep snow. Many of tlhe men were frost-bitten and all were very much jaded witll the exertions necessary to travel over unbeaten roads, l)eing marched in front of tlle artillery and wagons in order to break a road through t;le snow. The constancy and patience with which the troops bore these hardships deserve all commendation, and cani not be excelled by the most veteran soldiers. (On the 3d I marched through Don Fernando Taos, and finding that the enelmy had fortified themselves in the Pueblo de Taos, proceededl to that place. I found it a place of great strength, being surrounded by adobe walls and strong pickets. Within tie inclosures and near the northern and southern walls arose two large buildings of irregular pyramidal form to the height of seven or eight stories. Each of these buildings was capable of sheltering 500 or 600 lmen. Besides tlese there were lmany,smaller buildings, and the large church of the town was situated in the northwestern angle, a small passage being left between it and the outer wall. The exterior wall and all the inclosed buildings were pierced for rifles. The town was admirably calculated for defense, every point of the exterior walls and pickets being flanked by some projecting building, as will be seen from the inclosed drawing. After having reconnloiterel the town I selected tle western flank of the church as lie point of attack, and about 2 o'clock p. i. Lieutenan)t 1)yer was ordered to open his battery at the d(istance of about 250 yards. A fire was kept up by the 6-pounder and tihe howitzers for about t-wo hours and a half, when, as the ammunition wagon had not vet come lup alnd the troops were suffering from cold and fatigue, I returned to Don Fernando. Early on the morning of the 4th I again advanced upon Pueblo. Posting thle dragoons under Captain Burgwin aboult 260 yards from the western flank of the church, I ordered the mounted mIen under Captains St. Vrain and Slack to a position on the opposite side of the town, whence they could discover and intercept any fugitives wlho might attempt to escape toward the mountains or in the direction of Don Fernando. The residue of tile troops took ground about 300 yards from tile northern wall. Here, too, Lieutenant Dyer established himself with the 6-pounder and 2 howitzers, while Lieutenant Hassandaub)el, of Major Clark's battalion light infantry, remained witll Captain Burgwin in command of 2 howitzers. By this arrangement a cross fire was obtained, sweeping the front and eastern flank of the church. All these arrangements having been made, the batteries opened upon the town at 9 o'clock a. nl. At 11 o'clock, finding it ilmplossible to break the walls of the church with the 6-pounder and howitzer, I determined to storm that building.. At a signal Captain Burgwin, at the head of his own company and that of Captain McMillins, charged the western flank of the church, while Captain Angney, infantry battalion, and Captain Barber and Lieutenant Boone, Second Regiment Missouri Mounted Volunteers, charged the northern wall. 1t 701 As soon as the troops above mientioned had established themselves under the western wall of the church, axes were used in the attemplt to breach it; and, a temporary la(l(lcr having been, made, the roof was fired. Al)out this time Captain Burgwin, at the headl of a small party, left the cover afforded 1b) the flank of the church, and penetrating into the corral in front of that building endeavored to force the door. In thli.s exposed situation Captain Burgwin received a severe wound, which deprived me o)f his valuable services, andl of which he died on the 7th instant. Lieutenants McIlvaine, First Dragoons, and Royall and Lackland, Second Regiment Mounted YVclunteers, accompanied Captain Burgwin into the corral; but the attempt on the cllhurch door prove(l fruitless and they were colmpelled to retire behind the wall. In the,neantime snmall holes had been cut into the western wall and( shells were thrown in 1)v hand, doing good execution. The (i-pounder was now brought around by Lieutenant Wilsonl, who, at the distance of 200 yards, poured a heavy fire of grape into the town. The eneny (lduring all this time kept up a destructive fire upon our troops. Al)out half lpast -3 o'clock the 6-poiunler was run up within 60 yar(ls of the church, and after 10 rounds one of the holes which had been cut with the axes was wi(leneld into a practicablle breach. The glin was now run up within 10 yarcds of the wall. A shell was thrown inl-thlree roullnds of grape were poure(l into tle breach. The storming party, among whomn were Iieutenant I)yer, of the ordnance, and Lieuteftants Wilson an(l Taylor, First l)ragoons, enteredl and took possession of the church without opposition. The interior was filled with dense snmoke, l)ut for which circutnmstance our storming party wouldl lave suffered great loss. A few of the enemy were seen in the gallery, where an open (loor admitte(l the air, but they retired without firing a gun. The troops left to support the battery on the north were now or(leredl to charge on that side. The enellmy abandoned the western part of tie town. AIany took refuge in the large houses on thle east, whfile others end(eavord(l to escalpe towardl the mountains. These latter were ltursue(l by tile iiounted nien u(ier Cal)tains Slack and St. Vrain, who killed 51 of thein, onlvy 2 or 3 men escaping. It was now night and( our troops were (luietly quartered il the hlouses which the enely hal abandoned. )On the next morning the enemy sue(l for peace, aind thinking tlhe severe loss they had sustained w-ouil p)rove a salutary lessol, I grantedt their supp)lication, on the condition tllat they shouldl (leli\ver up to me To(lams, one (of their princip)al mein, who had instigated and been actively ellgaged in thle mur(ler of (Gov — ernor Bent and others. The number of thle enenlv at the battle of l'ueblo (le Taos was l)etween 600 and 700. Of these about. 150 were killed; wounded not known. Our own loss was 7 killel an(l 45 wounde(l. MIany of the woun(led have since d(ied. The p)rincipal leaders in this insurrection were Tafova, Pablo Clhavis, Pablo Montoya, Cortez, and( TOImas, a Pueblo Ilndian. ()f these, Tafoy!' was killed at Calla(da; Clhavis was killed at P'uelo; Montoya was hallged at Donll Fernando on tle 7th instant, and Totmas was sllot )by a: lrivate while in tlle guardroo0l at the latter town. Cortez is still at large. This person was at tlhe lhead of tile rel)els inl the valley of the MIora. For the operations in that quarter I refer vyou to tle subjoinled letters from Captains -Ienley, Separate Battalion 5Missouri 5Iountedl V(olunteers, and 3Murphy, o)f the infantry, an(l Lieutenant MIcKalimey, Second Regimlellt 3Missouri Mounted Volunteers. In the battles of Cafila(la, Embnld(lo, anl Pueblo (le Taos the officers andl men behaved admiirably. 'Where all condlucted themselves gallantly, I consi(ler it imnproper to d(istinguish indlividulals, as suchl discrimination lighllt operate prejudieiully against the just claims of others. have the lhonor to be, very respectfully, your obedient servant, STERLING PRICE, Coloel, Coommnniading th1e Army in.\ewiv Mexico. The ADJUTANT-G(ENERAI. (OF TIHE ARMY, Ilashingtoi, I). (. 702 SANTA FE, Februiary 16, 1847. SIR: In obedience to the order of my superior officer, Maj. Lew-is M. Clark, commanding the battalion of Missouri Light Artillery, to informl you in his absence from this place of all interesting events which may transpire here, and in which the part of his battalion, stationed at Santa Fe, un(ler my command, lmay participate, I avail myself of this opportunity to address a few lines to you. Ill the last warlike events in New Mexico, froIm the 2'3d of January to the 11th of February last, 26 men of sai(l battalion, under the commland( of Lieut. F. I-Hassendeut)el, of my company, and Lieutenant Dyer, of thle Regular Arlmy, took such a share as will do great honor to the battalioln to which they elong. In tle first fight at Caflada, on the 24th of January last, the artillery alone was exposed to the fire of the enemy for nearly two hours, which was so effective as to wound 5 nlen out of 20, anld with the exception of one mnan, all had their clothes perforated 1)y bullets. But they all stoo(l like walls and behaved with such coolness and valor as if tlley had been veterans and not volunteers, hearing for the first time in their lives the bullets of the enemy whistling by. The samne soldierlike and laudable spirit animated thell in the next two fights before Pueblo de Taos, where three of them were wounded. 'This Pueblo de Taos is one of the most remarkable places in New Mexico, and I take the liberty to add hereto a plan of the same (lrawn by Lieutenant Iassendeubel at the very place. The two largest lbuildings are seven stories high; the base covers nearly an acre, and( the walls are from 4 to 6 feet thick. The entrance to these houses is from above, and the interior of this labyrinth, as I mIay call it, is (lividled and partitioned off in innumnerable small roomls, it is believed in nearly 300. The structure of the houses ill New Mexico is such as to make the use of mortars necessary that will throw a shell of at least 50 pounds. The walls are generally 3 feet thick and built of "ad(obes," a sort of sun-drie(l brick of a very soft quality, through which a ball of a 12-pounder will pass without d(oin1 any nmore dlamage, which in houses of brick or stone is quite different. I desired very much to participate in these fights nmvself, but the orders of Colonel Price detained me here in Santa Fe, and whenl at last all order arriv-e( c(ommnana(ling me to join Colonel Price with 50 nien and a 24-pounder howitzerl, an(l I had already started, a counter order reached me oll the nlarch commanding nlle to return to Santa Fe, as P'ueblo de Taos was taken and the enenmy had surrendereld. I reposed full confidence in my ncll, when sending thein off to fight the battles of their country, that they would coI(lldut themselves as soldiers and( men of thonor, and, according to tile testimony of all officers who were present in this camllaign, they have so distinguished themselves bly their courage and( good d(iscipline as to excee( nlly just expectations. A great deal of praise is due to Lieutenant lIassendeubel, who, by his brave conduct and his coolness, set a worthy example to the men under his command. I have, sir, the honor to sign mlyself your most obedient and humble servant, IVOLI)EMAI R FISCHER, COpt(tin, CGoulmtl(lding Colptany B, Mlissoutri Light Artillery, and Commander of Fort Maroy. Brig. Gen. R. JONES, Adjutant-General, U. S. A. 703 List of the 1(ill(d awld /roOidel (it COtii(td, Embundo, anid Pueblo de Thos. AT THE BATTLE OF CANADA, JANUARY 24, 1847. Nanmes. Ran-i ik. Company. Rgmn n Remarks. battalion. Killed: Grahami.......Private.......Company1 B....Infantry battalion; Ini em ploy quarterVolnteredformaster. Ii. Mssersith... Teasterthe occasion. do Irvine....... Fmr.t lientenant.-Company A.......do........John lace.....Prixate.........do..........do....... Caspers...... First sergeant.... B. monnted artil. Lieutenant D~yer's lery. detachmnent. Anlmon.......Privaite.........4o..........do....... Muirphy........ do.......C. artillery........do....... Mezer..........do.......B, artillery........do....... Acting adjutant battalion. Slightly. Do. ISeverely. AT THE BATTLE OF EMBUDO, JA~NULARY 29., 18S47. Killed: l~apin........Private.......Santa Fe Volun- Capt. St. Vrains's Wone:teers. company. lDick........(A niegro).....Governor Benitss.! Servant......Severely \wounded. AT PU7EBLO DE TAOS;, ON FEBRUARY.4, 1847. Ki Wi Atkins.......Teamster...... m A n ni n i t l o ii Employ of uin~arwvagon. termaster. Dunded:wond Alfred L.(aldwell. First sergeant.... K. L.i enut enan t Secoind Regiment M~ortallyude White. 'Missoniri Voluni (since (lead). James Anstin....Priv-ate.(10....... ( 1(............d...... )o. James V. Jones... Third corporal......(10.............do.)......Severelywounded. Robert C.. Bower.. P~rivate. A....., Lielitelia tlt,...o (10...lDo E. NV. Boone. SarnI. Lewis.....Private. --- —-- t1, Captain Halley s eeidii Regiment 1)o. IMissotiri V7oln tii l e ers. T. G. West......Firs;t lientenant N..N Capptto' Barbee I1... do()..l..... o. I. H. Caltawvay.... Private........ d....... do........ o. John Nagel.......(10o.d..... I....... ---do(li....... 1(,John J. Sights...... (i o........ (I()......... (10........ D~o. Sam H. McMillan. Captain.......i. Captain M(~l...... do.......I Do. Henry Fender.... P~riv-ate.............. do ----—...(o. --- —— J)angeronsly Geo. WV. Johnson.....do....... do..........do.I...... o. Bobt. Hewvitt....... l --- —-...(10 it..........do........SlighIltly woutided. Geo. W. Hlowser. d....(o.........do10.d....... Io...... o. WinI. Dneoing.......do......I...(lo....... doi. --- — )) John Mansfield... lientetmant....L, (Captain Shack.. ""do. 1) --- —- 0. Jacob Noons.....Priv-ate...........doi..........(10. --- —— Sc-ev ere Iv v wiiitndled. Win. Gibbons.......do -----—...do..........do. --- —— Slightly wotinded. G. B. Ross......First sergeant... G C(aptain Burg- IFirst; U. S. lDra- Killed.' Nvn 1(1 10015. Brooks.......Private.......i... do...........d...... Do. Beebes..........do........ do...........do........ o. Levicy..........do..........do....... d o......o. Hansuker.........do..........d o.......-..do....... Do. Captain Btmrgwimt Captain.........di)..........do........Mortally woundad (since lead). I. Van roc......Sergeantit.......d(o..........do....... Scverelvwounded. C. Ingleman....Corporal........do..........do....... Do. 1. L. Linneman......(to........ I...do..........do..l..... o. S. Blodget..... Private........!..d........... dodo....... Do. S. WV. Crain........do........ do.......... do....... Do. R. Deets..........do...........do.........do....... Do. G. F. Sickenberg. d...(o.......I.. do..........do........ Do. I.Truax..........do....... I.....:do..........:.....d o........ Severely woitded (stin( (lead). Hagenbagh........do..........d(o..........(lo.......Severcy votiirded. Anderson........d......... d o.(......0... d o....... Do, Beach...........do..........do..........do.. Slightly wounded, Hutton..........do..........do..........do........ Do, P704 List of the killed and wounded at Caniada, Embudo, and Pueblo (de Taos-Continued. AT PUEBLO DE TAOS, ON FEBRUARY 4, 1847-Continued. Names. Rank. Company. Rebamntand Remarks. Wounded: Hillerman....... Priva'te.......... G, Captain Burg- First U. S. Dra- Slightly wounded. win. goons. Walker, 1st............ do................do.................do........... Do. Schneider.............do.............. do.................do...-....... Severely wounded (since dead). Shay................do.................do...............do............ Severely wounded. Near...................do........ do............... do........... Do. Bremen............ do............ I, Captain Burg-.....do............ Do. win. Bielfeld..............do............ B, Missouri Aftil- Lieutenant Dyer's Do. lery. detachment. Jod.................do..........dD.....d...........do...... Do. Kohn.............. do.............. do..............do............ Slightly wounded. Hart.............. Sergeant........ Captain Angney.. Infantry battalion Killed. Ferguson d.............do....... do................ do............ Badly wounded. Ault................... do..............do................ do............ Do. Van Valkenberg.. Lieutenant....... B, Captain Ang-.....do............ Mortally wounded ney. (since dead). Gold............ Private.......... Santa Fe Volun- Captain St.Vrains Severely wounded. teers. Mitchell..............do............... do.................do............ Slightly wounded. In addition to the foregoing, Captain Hendly was killed at the town of Mora on the 24th of January last, and on the same day three men were wounded at the same place. SANTA FE, N. MEX., February 15, 1847. SIR: It becomes my painful duty to inform you of the death of Capt. I. H. K. Burgwin, First Dragoons. The official information I received from Lieut. A. B. Dyer, of the Ordnance Corps, is to this effect: "Battle at Embudo January 29; Captain Burgwin, commanding 180 men (Americans), defeated 1,500 Mexicans and Indians, killing 20, wounding 50 or 60; Americans' loss, 1 killed and 1 wounded. "Battle of Pueblo de Taos February 4, 1847. Our troops (under command of Colonel Price), 400; Mexicans and Indians, 1,000. Our loss, 12 now dead, 52 wounded. The enemy defeated; loss, 152 killed, number of wounded not known. Captain Burgwin shot through the right breast at 12.30 p. in.; died at quarter past 7 a. m. February 7, 1847." The body of Captain B. was brought to this place and buried with military honors by my company on the 13th instant. Very respectfully, your obedient servant, W"vM. N. GRIER, Captain, First Dragoons. Lieut. H. W. STAUNTON, Acting Adjutant First Dragoons, Fort Leavenworth, Mo. DON FERNANDO DE TAOS, N. MEX., February 16, 1847. COLONEL: I have the honor herewith to transmit the monthly return of the late Capt. I. H. K. Burgwin's company (G, First Dragoons) for the month of January, 1847. I have signed the return myself, and in order to explain it beg leave to submit the following statement: On January 23 Captain Burgwin marched with his company from Albuquerque, a town on the Rio Grande, 70 miles distant from Santa Fe, to join Colonel Price. He reached the latter place on January 26. On 28th he joined Colonel Price with his company at a town on the Rio Arriba, 35 miles from Santa Fe in the direction of Taos. I' --- 705 On the 29th he was sent forward in command of a detachment, made up of his own company and about 100 volunteers, to drive the enemy from a stronghold in a mountain pass near a town called Embudo. Early in the day Captain Burgwin found the enemy posted on the heights, in the ravines, and behind all trees and rocks where shelter could be found. The enemy numbered about 500, consisting of Mexicans and Pueblo Indians. Captain Burgwin at once engaged the enemy by ordering Captain St. Vrain's company of citizens and mountain men to dismount and skirmish on the left of the road. At the same time I was ordered to throw out the dragoons on the right and left. The action lasted about two and one-half hours. The enemy was put to flight with considerable loss and was pursued more than 2 miles from hill to hill through the ravines, and was completely routed and driven beyond the town of Elnbudo, of which Captain Burgwin took possession and in which his command camped on the night of 29th. In this engagement Captain Burgwin lost 1 man killed and 1 wounded. The enemy lost, so far as could be ascertained, about 20 killed and 60 wounded. On January 30 Captain Burgwin joined Colonel Price at a town called Trampas, 15 miles from Embudo. On 31st the march was continued toward Taos Valley, which Colonel Price reached on the evening of February 2 with his command. On the evening of 3d a march of 6 miles was made to the Pueblo de Taos. After an attempt to reduce the place by a bombardment it was found impracticable, and Colonel Price returned to Don Fernando de Taos for the night. Early on the morning of 4th the town of Pueblo de Taos, in which the enemy to the number of 1,000 was fortified, was attacked at different points by the artillery and musketeers. At about 11 o'clock a. m. Captain Burgwin, in command of his own company and a part of Captain McMillins's company, Missouri Volunteers, charged the town from the front and carried by storm all the outward defenses up to the walls of the church. A simultaneous charge was to have been made on the left flank by a portion of the large force of volunteers stationed there beyond effective rifle range, but from some mistake the dragoons were first in the charging, and for some time were exposed to the galling fire of the enemy through loopholes in the church and main buildings. It was during this period that Captain Burgwin received a mortal wound. The main force, however, coming up soon, carried the church and put many of the enemy to flight. The town was carried and the battle closed near night, having killed about 150 of the enemy. I assumed command of the dragoons, being the next officer in rank and having served with them in all the engagements. Capt. I. H. K. Burgwin died on the morning of February 7. In the action of the 4th Company G, First Dragoons, lost 7 killed and 16 wounded, exclusive of the captain. I am, sir, very respectfully, your most obedient servant, RUFUS INGALLS, Second Lieutenant, First Dragoons. Lieut. Col. C. WHARTON, Comrmanding First Dragoons, Fort Leavenworth, Mo. A true copy. W. H. STANTON, Second Lieutenant, First Dragoons. HEADQUARTERS, FORT LEAVENWORTH, April 1, 1847. SIR: It is with more than ordinary grief that I herewith inclose an official report of the death of Capt. I. H. K. Burgwin, of the First Regiment Dragoons, who was mortally wounded in the battle of Pueblo (de Taos on the 4th of February last. 1394-03 — 45 706 Having known long and intimately the late captain, I can not forbear observing that for personal worth and professional excellence in his particular arml of service the deceased has left no superior behind him. The announcement of his death-this morning learned-has cast a gloom over the hearts of all at this post who ever knew him professionally or personally. I transmit also a copy of a letter this morning received from Lieutenant Ingalls, now in command of the late Captain Burgwin's company, which furnishes a brief account of the affair of the 29th of January near Embudo and of that of the 4th of February at Pueblo de Taos. Respectfully, your obedient servant, C. WHARTON, Lieatenant- Colonel First Dragoons, Commanding. Brig. Gen. R. JONES, Adjutant-General,!a'tshington, D. C P. S.-I have just obtained and send you a printed sheet from the Government printing office at Santa Fe, giving details of the several affairs between our forces and the Mexicans up to the ]5th of February last. C. W. [Reports on hostilities in vicinity of Las Vegas, in the eastern part of Territory. Records War Department.] HEADQUARTERS GRAZING DETACHMENT, L(s Ve}gas, January 23, 1847. SIR: Below is an account of the circumstances that have lately transpired in this region. On the evening of the 20th instant myself and Lieut. N. J. Williamns happened at this place just as the town had assembled in general council to hear the same circular read that has (been) forwarded to you from Taos. The alcalde of this (place) declared against the insurrection, and stopped the express and forwarded the letter to you. Early the next day I took possession of this place with part of my command, and have ordered the balance to join me to-day. Lieutenant McKamey has also joined me with his forces. I have ordered the different grazing parties to rendezvous their stock about 7 miles below this place and the men to report themselves here ready for service as quick as possible. News reached this place this morning that Messrs. Waldo, Culver, and two other Americans had been killed in Mora and that a United States grazing party hald been cut to pieces night before last. Yesterday morning I started Lieutenant Hawkins, with 35 men, to find out what had become of some trains that I heard were on this side of the mountains, with orders to bring them in, if possible, as I consider it of great importance that they should be brought in safe. My movements so far have been in anticipation of your orders, and have (been) such as to place the whole force in this section for offensive and defensive operation. I ordered Lieutenant McKamey to bring up the balance of his forces and some grazers that are near him to this place. To-morrow I expect to go against Mora witll Iart of my force, where it is reported that the Mexicans are embodied. Our ammunition is very short, there only being about 10 rounds of cartridges and 25 pounds each powder and lead that I yesterday got fron a Mr. Kid. It is of great importance that I should be quickly supplied. If you will forward me one or two pieces of artillery, well manned, and plenty of ammunition, I pledge myself to subdue and keel) in check every town tilis side of the mountains. Every town and1 village except this (I did not give it timiie) andl Tucoloti have declared in favor of the insurrection. Tile whole population appear ripe for the insurrection. I will try aId(l k-eip!yo apprised of all mlovelments in this quarter. It is sail tlat a larve for(e-jrla',lv 1.000 mcn-are marching fro: 7()07 Taos toward Santa. Fe, Tomla, Ortes, anl Arclluletta at their ihead. The -Mora mllenI do not know what lea(lers they have, but hope to be better able to tell you in a few d(ays. I am collecting all the provisions I canl at this poinit, for I think you will find that troops must be kept here, as it would keep San MIiguel, Mora, and surrounlding country in check. If vou conclude to forward me the artillery, sendl me word and I will meet it. I want permission to purchase corn to feed fronm 70 to 100 horses, as some mounted men will be required for two or three weeks. My force by to-morrow or next (lay will amount, including grazing parties and other Americans that have joined mne for protection, to about 225 men, say 175 efficient imen, out of which Lieutenant Hawkins is now absent with 35 mlien. Hloping that you may approve of what I have already doine and senll me full instruction and pIlenty of ammunition, I renlain, your obedient servant, I. R. HENDL Y, (i)p)tain CootJ)any (', (bmmnanding (it J'eyl.as. Col.. I)PicE. P'. S.-The express sent by Lieutenant-Colonel Willock was attacked at the San Bernlal Spring and only escaped by deserting their mules and taking to the mountains afoot. The action against the population here, I would suggest, should be active and vigorous. I. II. R. JANUARY 23, 1847-2 o'clock p). lml. SIR: Ain express has just arrived from Lieutenant Hawkins, at the Mora River, that lie had met Captain Murphy, escorted by a detachment of Capain Jackson's company. Iieutenant Ilawkins will escort Captain MIurphy from Mora to this place, and froiin here I will go with him myself until I mleet an escort from Santa Fe, which I (lesire you will hurry on as as fast as possible, an(l let themn bring me the artillery if vou conclude to send me aniy. Captain Jacksonl's men will return from the Mora to meet the trains, which are one tlav's mlarch fromn tlat l)lace. No fresh news albout the Mexicans except Lieutenant Hawkins's report that a parcel of the Apache Ind(ians have joined with the Mexicans. So Mr. Wells at the IMora has heard. The escorting of Captain Murphy will much impede my operations here. Respectfully, i. R. IENI)LY, ('Ilp)taili, etC. C(loiiel 1 'i'E:. B(AGAxs (VEG(AS),,JIat0'oy 25, 1847. SIR: Tlhe grazing parties {of tllis part of tlhe country have all assembled at Begos anld we are about 250 strong. We learned a few days since that there were a force of Mexicans assembled( at Mora towin, and on vester(lay we started up to that place with a force of 80 men under the command of Captain Hendly for the lpurpose of ascertaining their strength, and on our arrival we found that there were 150 or 200 mInel. We lialted in the suburbs of tile towln and were consulting whetller we would attack the town or not; an(d while we were consulting there 4.Mexicans camie runninig down out of the mountains; 6 of us mounted our horses and aimed( to cut them off fromii the towni, lbut the Miexicals camle running out to their relief and at that timie Captainl Heftlly ordered the (,ompaily to mount anl(l charge on them; and they firedl ol us two or three tiires aind then retreated to thleir fort, and we cut off 15 andt took thenlll prisnlers. We~ kept lip a firilng for a comilsideralde lengtll ~of tillle. A fter killing froml 15 to 20 we comlice lled (turniiirig at(il teariiig downl tlleir louses, ant ha(l succeeded in getting 708 into one end of the fort-Captain Hendly, myself, and about 10 men-and fired on them ten or twelve times, when Captain Hendly received a shot and (lied immediately. We took him out of the room and carried him some 200 yards. It was then growing late, and being informed that there were from three to five hundred troops started from that place on this morning for Santa Fe, and fearing that they miight be called back, we retreated with our men and prisoners to Vegos where we are well fortified, where we arrived with 3 men slightly wounded. If we had one or two pieces of artillery to scare them out of their dens we could whip all the Mexicans this side of the ridge. Yours, in haste, T. C. MCKAMEY, Lieuten(att. Colonel PRICE. BAGAs (VEGAS), January 25, 1847. I inclose to you Lieutenant McKamey's report of the battle of Mora town, which commenced this morning and lasted about three hours. I arrived here on the evening of the 23d and did not think it prudent to leave until the command returned from Mora town, which has just returned bringing the dead body of Captain Hendley, the only loss on our side. The loss on the part of Mexicans, so far as ascertained, is 15 killed and 15 prisoners, with whom I will commence my march on the 27th, and expect to arrive in Santa Fe on 30th instant. There is but one provision train on this side of the Raton Mountains. It will encamp at the crossing of the Mora to-morrow night. Mr. Campbell has gone with 15 men to procure fresh cattle to assist it to this place. I have taken the responsibility to send Lieutenant Oxley, Company 0, Second Regiment, in command of 18 men, from Mora back to protect the train, which I hope will prove satisfactory. Companies M and N grazing camps have been robbed of all their animals except five or six; no men killed. The animals at Bent farm have all been taken. Seven men killed at this camp; report says all volunteers, some of them belonging to Captain Jackson's company. The bearer of this will inform you of particulars not prudent to commit to writing. Yours, respectfully, W. S. MITRPHY, Captain, Int. Mo. Vols. P. S. —Romulus Culver, of Chariton; Ludlow Waldo, of Jackson; Mr. Prewit, of Santa Fe; Lewis Cabano, of Missouri, and four or five in company were taken lrisoners, robbed, and shot at Mora town on or about the 20th of the month. The leader of the forces at that place is by the name of Cortez. HEADQUARTERS NINTH MILITARY DEPARTMENT, 'Sa(nta F', July 20, 1847. SIR: Since the insurrection of January and February last, a body of Mexicans and Indians, embodied for predatory purposes, have been very annoying along the line of the eastern settlements of this Territory, where many of our grazing camps were established. They did not, however, venture an attack upon any of the detachments in that quarter until the 20th of May last, when the camp of Captain Robinson, separate battalion, Missouri Mounted Volunteers, was surprised, and about 200 horses and mules were driven off. In this affair Captain Robinson lost 1 man killed and 2 wounded. Information of these events was immediately sent to Major Edmonson, commanding at Vegas, who at once marched in pursuit of the marauders whom he found on the 26th of June in a deep canyon on the Rio Colorado, or, more properly, the Canadian River. 709 Major Ednlonson entered the canyon and a desultory fight ensued, for the particulars of which I refer you to the official report of the engagement, which is herewith sent. This unsuccessful attempt to recapture the lost animals has emboldened the Mexicans and Indians to conmmit further acts of aggression. On June 27 Lieut. R. T. Brown, Second Missouri Mounted Volunteers, with 2 volunteers and a Mexican guide started in pursuit of some horses which had been stolen at Vegas. Lieutenant Brown found the animals at Las Vallas, a smlall village about 15 miles south of Vegas, but upon his seizing them the Mexicans resisted and muirdered the whole party. As soon as Major EdnIonson was informed of the massacre of this party he marched fronm Vegas, and, surprising the town, shot down a few who attempted to escape and took about 40 prisoners. These prisoners are now confined in this city awaiting their trial. On tile 6th of July the grazing camp of Captain Morin's company (Separate Battalion Missouri Mounted Volunteers) was attacked, Lieutenant Larkin and 4 men were killed and 9 wounded, and all the horses, besides property of every description, fell into the hands of the outlaws. Lieutenant-Colonel Willock, commanding at Taos, immediately marched in pursuit of them, but at length finding it impossible to overtake them returned to Taos. The forces under my commnand are now so much diminished by the departure of the companies whose terms of service have expired, that I consider it necessary to concentrate my whole command at this city. Rumors of insurrections are rife, and it is said that a large force is approaching from the direction of Chihuahua. I aml unable to determine whether these rumors are true or false, but it is certain that the New Mexicans entertain deadly hatred against the Americans, and they will cut off small parties of the latter whenever they think they can escape detection. General Orders, No. 14, have bleen received and promulgated, and it is probable that three or four companies, composed of discharged volunteers and teamsters, formerly in the employment of the assistant quartermaster, may be mustered into the service of the United States at tllis city. I have the honor to be, very respectfully, your obedient servant, STERLING PRICE, Colonlcl, Comnnmanding the Ninth Military Department. The ADJUTANT-GENERAL OF THE ARMY, latshington, D. t. CAMP NEAR SANTA CIARA SPRINGS, NEW MEXICO, Jue 14, 1847. SIR: In compliance with Orders, No. 187, May 16, I proceeded to Las Vegas with Companies B and F, Second Reginent Missouri Mounted Volunteers, and the detachment Laclede Rangers, comrnmanded by Lieutenant Elliott. Upon my arrival at San Magil I was informed that a large party of Shian and Apache Indians had gone to the mouth of the Moro on Red River to join a marauding party of Mexicans and others, numbering 300 to 400, and c(ommanded by the outlaw Cortes, and that small detachments were being sent into the settlemnents to commit depredations on the property of the citizens and American solliers. On my arrival at Las Vegas, May 20, being informed that a party of about 50 Indians were in the mountains 30 miles north, having with them about 200 stolen animals, I dispatched Company F, Captain Horine, in pursuit. On1 the samle (lay Company B, Captain Dent, was sent to disperse a marauding party said to be about 40 miles south of this place. On the evening of the same day I received information of the surprise of our grazing party under Captain Roberson near Wagon Mound by a party of Indians and Mexicans, in which we lost 1 man killed and 2 wounded, and 250 horses. Being 710 destitute of mounted Ien in consequence of the departure of tle lcomnllalds of Captains Htorine and I)ent on the morning previous, I illllltediately orderedl il the grazing parties from the Ocato. I was thus enabled by the use of somle (Governinent animals to mount between 75 and 80 lmen, with which commland I reached Captain Roberson's camp on the evenling of the 24th. I there found Captain Brown (witl 12 wagons laden with goods lbelonging to our settlers, Messrs. Rich and Polnroy), who had been attacked the p)revious day at Santa Clara Springs (8 mIiles distant) by the Indians, who made a desperate effort to get possession of the wagons. Failing in that attempt, they drove his oxen out of reach of gunshot and dleliterateloy killed them to the number of between 60 and 70. The killing of the cattle was (loubtless intended to detain the wagons and thus afford an opportunity to surprise and get possession of them. On the following morning, 25th, leaving about 30 men for the protection of the settlers' wagons, I organized two scouting parties, one under charge of Captain Holoway and the other under charge of Lieutenant Elliot, with direction to rendezvous at Santa Clara Springs the following night. We that day discovered where the enenmy had corralled their animals a few days previous in the mountains, about 15, miles south of Santa Clara Springs, but had left in the direction of Red River. On the following morning, after forming an advance or spy party, under conmand of Captain Holoway, Company E, the remainder were formed into three platoons; No. 1, commanded by Captain Roberson; No. 2, by Lieutenant Elliot, and No. 3 by Lieutenant Brown, Company F. Thus organized, I proceeded to follow the trail discovered on the day previous to the canyon of Red River. I entered it with Captain Roberson's connmand, leaving the commands of Lieutenants Elliot and Brown behind, the company of spies going some fifty minutes in advance in order to prevent surprise. Descending into the canyon with great difficulty through the rocks, leading our horses and following the mleanderings of thle Indian trail about half a mile, I discovered three Indians secreted behind the rocks about 200 yards from our trail. Supposing that a large number mlight be there secreted, and having myself the advantage of the ground, I ordered a halt until the rear of the command should arrive. Whereupon the three Indians, who had no doublt been placed there as sentinels, mlade a rush for their horses, they being close at hand and ready saddled. They were ilmmediately fired upon, killing one of them and unhorsing another; the two remaining Indians mounted one horse and thus made their escape for the time. We then continued to (escend to the bottomn of the canyon, and with somle difficulty effected a crossing of the river. Pursuing the tracks up the bank of the river, we passed the two Indians above spoken of, who immediately made a desperate attempt to reach the main body of the enemy, w-ho were then in our rear, but were immediately pursued and )both slain before they could reach their party. The hills around us were by this tilme literally covered with Indians and Mexicans, who witnessed the tragedy and opened a fire upon us from every point occupied by them. The bottom of the canyon was so narrow as to expose our men to the fire of the enenmy from the hills on either side, which were very rocky and so nearly perpendicular as to render a charge implossible. I determined to recross the river in view of occupying some high points on the opposite side which would at all times command the outlet from the canyon, but tile enemy, understanding the order, or anticipating it, got possession of the ford before the men could be rallied, who were somewhat scattered in the pursuit of the two Indians spoken of. I then returned up the river some half mile and took possession of a point of rocks which was out of gunshot reach from the hills on the opposite side of the river; but being too far from the river to command access to water, I deteriined to occupy a point more favorably situated, in passing to which Lieutenants Elliot, Miller, and Sursey, who were in the rear, discovered a large party of Mexicans rapidly descending the hill (who had escaped my notice), rallied about 20 mlen and kept them in 711 check until the main body got possession of the point last (esignated. The men were illmediately ordered to dismount, conceal their horses as far as possible, and take advantage of the rocks until the enemy should approach sufficiently near to enable us to make a charge, sending at the same time a detachment to the bank of the river to secure the water and prevent the enemy passing up the canyon in our rear. Our troops being thus disposed of, the fight commenced at the three several points and continued without intermission about four hours, the enemy alternately advancing and retreating as new recruits arrived. About sunset, having driven beyond our reach the Indians and Mexicans, finding a large portion of the troops out of ammunition, many of our men having ceased firing for want of it, and knowing that we would necessarily have to fight our way out of the canyon, as the enemy occupied the passes, I determined to reach the open ground at the top of the canyon before dark, which was effected in good order, except in fording the river, where the enemy, anticipating our movement, were concealed in considerable numbers, opened a hot fire, wounding 2 of our men and killing several horses. After crossing the river we returned the fire of the Indians and drove them back with the loss of 5 killed and several wounded. We then proceeded to the top of the hill in good order, reaching it at dark, whereupon our troops were immediately formed for action; but no enemy appearing, we marched to water and encamped for the night, in view of returning to the canyon the following morning. Our number in the engagement was 77. The number of the enemy could not be correctly ascertained, but have been variously estimated at from 400 to 600. Our loss was I man killed and 3 slightly wounded, while the enemy's loss was reported at 41 killed. The number of their wounded could not be ascertained, as thev were removed off the field as fast as they fell. On consulting with the officers the next day, 27th, anl finding that that portion of our troops furnished by the grazing parties (composing much the largest portion of the command) were entirely out of ammunition, we were reluctantly compelled to suspend operations until a further supply could be obtained. Upon reentering the canyon we found that the enemy had left on the night after the battle in great haste, leaving horses, cattle, camp equipage, etc., not taking time to scalp or strip our man lost in the action, as is their custom. We pursued them with all possible dispatch to their first camping ground in their retreat, where, from appearances, they had made a division of their property and forces. We continued to follow their traces many miles in the plains, until, getting among large herds of mustangs, or wild horses, it became impossible to track themi farther. Our horses being much fatigued and tenderfooted from our travel over the rocks, we returned to our present camp near Wagon Mound. Since the 26th of May (as far as my knowledge extends) there has been no further depredations committed in or marauding parties infesting this portion of the Territory. Respectfully, yours, etc., D. B. EDMONSON, Major, Commanding Detachment, etc. Col. S. PRICE, Commanding Armn! in Neew Mexico. [Official public proclamations regarding insurrections. Records War Department.] ARMY (F THE WEST-MASSACRE OF (GOVERNOR BENT AND OTHER AMERICANS AT TAOSBATTLES OF CANADA, ELEMBODA, TAOS, AND MORO-AMERICANS VICTORIOUS. On the 13th of January, 1847, Charles Bent, governor of the Territory of New Mexico, left Santa Fe, the seat of government, for Taos, his place of residence. While there the friends of two Pueblo Indians who where confined in prison at that 712 place requested him to release them, to which he replied that, although governor of the province, it was entirely out of his power to release any one confined by law until they were tried. They then resolved to release the prisoners by force and murder all the Americans in Taos, together with those Mexicans who had either accepted office under the American Government or were favorable to Americans. On the Tuesday following they effected their resolution, releasing the prisoners and barbarously murdering and scalping Governor Bent; Stephen Lee, sheriff; James W. Leal, circuit attorney; Cornelio Vigil (a spaniard), perfect; Narcesses Beaubien, and Parbleau Herrmeah, sparing but one American, named Elliott Lee. Leal was scalped alive. At the Arro Onlo, 12 miles from Taos, the following men fortified themselves in a house, and after standing a siege of two days were taken and murdered: Simeon Turley, Albert Cooper, William Hatfield (a volunteer), Louis Folque, Peter Robert, Joseph Marshall, William Austin, M\ark Head, and William Harwood. The number of Mexicans and Indians engaged in this massacre has been estimated at 300. On the morning of the 20th of January intelligence of the massacre of (Governor Bent was brought to Santa Fe by an Indian runner. A circular letter was also received by the priest at this place stating that the Mexicans and Indians of Taos had risen against the invaders of their country, and requesting him to join them. This letter was handed to Colonel Price by the priest. Various reports reached this place of the advance of the enemy and their near approach. In consequence of these reports Colonel Price determined to march out of Santa Fe and meet thell in the open field. He took with hin 340 men, composed of Captain Angney's battalion of infantry, portions of six companies of the Second Regiment, and a company of citizens and mountaineers under the command of Captain St. Vrain, leaving Lieutenant-Colonel Willock in command of his post with a force composed of his own battalion, three companies of the Second Regiment, a portion of Captain Fischer's company of light artillery, and one company of regulars. On the evening of the 24th Colonel Price encountered the enemy at Caflada, numbering about 2,000 men, under the command of Gens. Jesus Tafoya, Pablo Chavez, and Pablo Montoya. The enemy were posted on the hills commanding each side of the road. About 2 o'clock p. m. a brisk fire from the artillery, under the command of Lieutenants Dyer (of the Regular Army) and Harsentiver, was opened upon them, but from their being so much scattered it had but little effect. The artillery were within such short distance as to be exposed to a hot fire, which either wounded or penetrated the clothes of 19 out of the 20 men who served the guns. Colonel Price, seeing the slight effect which the artillery had upon them, ordered Captain Angney with his battalion to charge the hill, which was gallantly done, being supported by Captain St. Vrain, of the citizens, and Lieutenant White, of the Carrol companies. The charge routed theml, and a scattering fight ensued. which lasted until sundown. Our loss was 2 killed and 7 wounded. The Mexicans acknowledged a loss of 36 killed and 45 taken prisoners. The enemy retreated toward Taos, their stronghold. Colonel Price, on the 27th, took up his line of march for Taos, and again encountered them at El Emboda on the 29th. They were discovered in the thick brush on each side of the road at the entrance of a defile by a party of spies, who immediately fired upon them. Captain Burgwin, who had that morning joined Colonel Price with his company of dragoons, hearing the firing, came up, together with Captain St. Vrain's and Lieutenant White's companies. A charge was made by the three companies, resulting in the total rout of the Mexicans and Indians. The battle lasted about half an hour, but the pursuit was kept up for two hours. The march was resuimed on the next day and met with no opposition until the evening of the 3d of February, at which time they arrived at the Pueblo de Taos, where 713 they found the Mexicans and Indians strongly fortified. A few rounds were fired by the artillery that evening, but it was deemed advisable not to make a general attack then, but wait until morning. The attack was commnenced in the mlorning lby two batteries under tlhe command of Lieutenants Dyer and Wilson, of the Regular Army, and Lieutenant Hlarsentiver, of tlhe light artillery, by throwing shells into the town. About 12 o'clock m. a charge was rldered and gallantly executel by Captain Burgwin's company, supported by Captain hMceMillan's company, and Captain Angney's lbattalion of infantry, supported by Captain Barbee's company. The church which had been used as a part of the fortifications was taken by this charge. Tlhe fight was hotly contested until night, when two white flags were hoisted, but were immediately shot down. In the morning tlhe fort was surrendered. In this battle fell Captain Burgwin, than whom a braver soldier or better man never poured out his Wiood in his country's cause. The total loss of the Mexicans in the three engagements is estimated at 2S2 killed; the numlller of their wounde(l is unknown. Our total loss was 11 killed and 47 wounded, 3 of whoml have since died. Killed.-Privates Messersmith, Graham, Papin, First Sergt. A. L. Caldwell, Private R. T. Bower, First Sergt. G. B. Ross, Privates Brooks, Levicy, Hansuker, J. Truax, and Sergeant Hart. Wouutlded.-Colonel Price, Capt. J. II. Burgwin (since died), First Lieutenant Van Valkenberg (since died), Captain McMillan, First Lieutenant Irwin, First Lieut. T. G. West, Lieut. J. Mansfield, Sergts. A. V. Aull, Caspers, J. Vanroe, Furguson, Corporals Jones and Inglemnan, Privates Aulman, Murphy, Mezer, James Austin, A. Lewis, J. H. Calaway, John Nagle, J. J. Sights, Henry Fender, Johnson, R. Hewitt, HIowser, Ducoing, J. Moon, Gibbons, J. L. Linneman, S. Blodgett, Crain, R. Deets, (T. T. Sickenberg, Hagenbaugh, Anderson, Beach, Hutton, Hillimae, Walker, Schneider, Shav, Near, Bremen, Bielfeldt, Jod, Kohn. On the 25th ultimo Captain Hendly (of Colonel Willock's battalion), who was in command of the grazing parties on the Rio Moro, marched with 80 men to the town of Moro to suppress the insurrection there and arrest the murderers of AMessrs. Culver, Waldo, Noves, and others, who were massacred at that place. He found a body of Mexicans under arms prepared to defend the town, and while forming his men into line for attack a small party of the insurgents were seen running from the hills. A detachment was ordered to cut them off, which was attacked by the main body of the enemy. A general engagement immediately ensued, the Mexicans retreating to the town and firing from the windows and loopholes in their houses. Captain Hendly and his men closely pursued, rushing into their houses with them, shooting some, and running others through with bayonets. A large body of the insurgents had taken possession of an old fort and commenced a fire from the loopholes upon the Americans. Captain Hendly, with a small party, had taken possession of an apartment in the fort and, while preparing to fire it, was shot by a ball from an adjoining room. He fell, and died in a few minutes. Our men, having no artillery and the fort being impregnable without it, retired to Las Vegas. The enemy had 25 killed and 17 taken prisoners. Our loss, 1 killed and 2 or 3 wounded. On the 1st instant, Captain Morin, who had been ordered from Santa Fe by Colonel Willock to succeed Captain Hendly in the command, proceeded with a body of men and one piece of cannon to Moro and razed the towns (Upper and Lower Morro) to the ground, the insurgents heving fled to the mountains. Several Mexicans were captured, supposed to be concerned in the murder of Messrs. Culver, Waldo, and others, and after many threats were forced to show where the bodies were buried. Seven of them were found and carried to Las Vegas for intermnent.-Government Printing Office, Santa Fe, February 15, 1847. 714 The following reports and proclamations were Ila(le t)y Donaciano Vigil, who became provisional governor after the death of Governor Bent (see Ex. Doe. No. 70, Thirtieth Congress, first session, pp. 20 et seq.): TRIUMPH OF PRINCIPLES ()OVER TURPITUDE. The provisional governor of the Territory to its inhabitants. FELLOW-CITIZENS: The gang of Pablo Montoya and Cortez, in Taos, infatuated in consequence of having sacrificed to their caprice his excellency the governor and other peaceable citizens, and commenced their great work of plunder by sacking the houses of their victims, according to principles proclaimed by them, for the purpose of making proselytes, yesterday encountered in the vicinity of La Cafiada the forces of the Government restorative of order and peace, and in that place, unfortunately for thelm, their triumph ended, for they were routed with the loss of many killed and 44 prisoners, upon whom the judgment of the law will fall. Their hosts were composed of scoundrels and desperadoes, so that it may be said that the war was one of the rabble against honest and discreet men; not one of the latter has as yet been found among this crew of vagabonds, unless, perhaps, some one actuated by the fear of losing his life while in their power or of being robbed of his property. The Government has the information, and congratulates itself that within ten (lays the inquietude caused you by the cry of alarm raised in Taos will cease, and peace, the precursor of the felicity of the country, will return to take her seat on the altar of concord and reciprocal confidence. The ringleaders of the conspiracy, if they should be apprehended, will receive the reward due to their signal crimes, and the Government, which for the present has been compelled to act with energy in order to crush the head of the revolutionary hydra which began to show itself in Taos, will afterwards adopt lenient measures, in order to consolidate the union of all the inhabitants of this beautiful country under the aegis of law and reason. I hope, therefore, that, your minds being now relieved of pastfears, you will think only on the security and protection of the law; and, uniting with your Government, will afford it the aid of your intelligence, in order that it may secure to you the prosperity desired by your fellow-citizen and friend, DONACIANO VIGIL. SANTA FE, January 25, 1847. The provisional governor of the Territory to its inhabitants: FELLOW CITIZENS: Your regularly appointed governor had occasion to go on private business as far as the town of Taos. A popular insurrection, headed by Pablo Montoya and Manuel Cortez, who raised the cry of revolution, resulted in the barbarous assassination of his excellency the governor, of the greater part of the Government officials, and some private citizens. Pablo Montoya, whom you already know, notorious for his insubordination and restlessness, headed a similar insurrection in September, 1837. Destitute of any sense of shame, he brought his followers to this capital, entered into an arrangement, deserted, as a reward for their fidelity, the unfortunate Montoyas, Esquibal, and Chopon, whose fate you know, and retired himself, well paid for his exploits, to his den at Taos. The whole population left the weight of their execration fall on others, and this brigand they left living on his wits-for he has no home or known property and is engaged in no occupation. Of what kind of people is his gang composed? Of the insurgent.Indian population of Taos, and of others as abandoned and desperate as their rebellious chief. Discreet and respectable men are anxiously awaiting the forces of the Government in order to be relieved from the anarchy in which disorder has placed them, and this relief will speedily be afforded them. In the year 1837 this mischievous fool took, as a 715 motto for his perversity, the wor( "Canton," and now it is "The reunion of Taos!" Beholdl the works of the champion who guides the revolution! And can there be a single man of sense who would valuntarily join his ranks? I should think not. Another of his pretended objects is to wage war against the foreign government. Why, if he is so full of patriotism, did he not exert himself and lead troops to prevent the entry of American forces in the month of August, instead of glutting his insane passions and showing his martial valor by the brutal sacrifice of defenseless victims, and this at the very time when an arrangement between the two Governments, with regard to boundaries, was expected? Whether this country has to belong to the Government of the United States or return to its native Mexico, is it not a gross absurdity to foment rancorous feelings toward people with whom we are either to compose one family or to continue our commercial relations? Unquestionably it is. To-day or to-morrow a respectable body of troops will commence their march for the purpose of quelling the disorders of Pablo Montoya in Taos. The G(overnment is determined to pursue energetic measures toward all the refractory until they are reduced to order, as well as to take care of and protect honest and discreet men; and I pray you that, hearkening to the voice of reason, for the sake of the common happiness and your own preservation, you will keep yourselves quiet and engaged in your private affairs. The term of my administration is purely transitory. Neither my qualifications nor the ad interim character, according to the organic law in which I take the reins of governmnent, encourage me to continue in so difficult and thorny a post, the duties of which are intended for individuals of greater enterprise and talents; but I protest to you, in the utmost fervor of my heart, that I will devote myself exclusively to endeavoring to secure you all the prosperity so much desired by your fellow-citizen and friend, DONACIANO VIGIL. SANTA FE, January 22, 1847. [Circular.] SUPREME GOVERNMENT OF THE TERRITORY. When a father of a family neglects or, more properly speaking, feigns not to perceive the misbehavior of his children, and permits them to escape merited punishment, their propensity to indulge in excesses continually increases until the habit is so confirmed that not even the severe punishment imposed by laws is sufficient to check them in the career which they have marked out for themselves; and the same is the case with a whole people under similar circumstances. Taos, whose beautiful valley rewards with abundant fruit the labors of industry, sheltered in her bosom a class of population wholly demoralized, the history of whose civil existence is a record of a series of crimes. In the year 1837 the flames of the revolution of La Canada having been extinguished, they were kindled anew in this valley. The timely measures adopted by General Armijo to quench them and the execution of some rebels who were taken between this and La Canada gave peace to the country for a time, and order was in appearance reestablished; but as the rebels were not punished with due severity at the very places where they had confederated, nor subjected to the necessary restrictions, they remained unawed. Very soon, therefore, after their rout at the little gap these people of Taos began to manifest the evil intentions which they harbored in their bosoms, in consequence of the impunity of their first crimes and of those which they have successively committed, until that which they recently perpetrated with so much savage inhumanity, which has covered us with mourning and plunged us in grief and sad recollections. In the year 1843 they rose and sacked the tithe granaries situated at various points in the valley of Taos, and the Government, shrinking from the duty of punishing 716 this excess and castigating at least the principal culprits, approved, or, for some reason, so completely overlooked it, that no notice was taken of the affair. Encouraged by the impunity which attended this crime, in the beginning of July in the same year they reassembled with criminal views of a more enlarged nature, for they proposed to themselves and attempted, in the first place, to kill the few Anericans and French who had married and settled among them; ant although they dlid not consummate this, owing as well to want of unanimity amlong themselves as to theirffailing to effect a surprise, they sated their rapacity by plundering the stores a'ld houses of the wealthiest foreigners. The local authorities, with the view of-quieting the complaints of the injured individuals, commenced some proceedings which, from the mode in which they were carried on, necessarily led to no result. ()n this application was made to the Government, but with the same result; and finally, after much expense and trouble, through the indifference and connivance of the said authorities and of the Government, the injured parties were ruined, and the mliscreants who perpetrated the crime were left to enjoy in absolute impunity the fruit of their plunder. The apathetic and criminal conduct of the previous administrations with respect to popular conmmotions gave so much encouragement to the perpetrators of these criles that those who originated the plan of the revolution which has just beell quelled found no difficulty whatever among the people of Taos, already adelpts in such proceedings. According to statements made by Indians of the town of Taos, who have appealed to the clemency of the commander of the forces employed in the restoration of ordler, the same Diego Archuleta who, in the middle of December, last year, plannedl a revolution in this city, which, being discovered in time by the Governtment, was quelled before it burst forth, is the individual who, before flying from the country, aided by the so-called Generals Pablo Montoya, Manuel Cortez, Jesus Tafoya, and Pablo Chavez, instigated them to the insurrection and proceedings which they carried into execution, and persuaded them that they might enter Santa Fe without resistance, and might subsequently with little trouble destroy or drive out of the country all the forces of the Government. The individuals mentioned are, so far as now known, the chiefs of this band of murderers and thieves. Diego Archuleta fled in a cowardly manner fromn the territory before the commencement of the revolution which he himself planned and counseled; Chavez and Tafoya fell in the action, Montoya was executed at Taos, and the assassin Cortez is wandering a fugitive in the mountains. There are besides at the disposal of the tribunals various individuals arranged as accomplices, upon whom, if guilty, the judgment of the law will fall. The Government troops triumphed over the rebels successively at La Canada, Embubo, and Taos, where the victory was decisive. There were killed in the field and town of Taos about 200 rebels; the remainder begged their lives and a pardon, which was granted them, and they were left at liberty to pursue their occupation.s in the security and peace which they thenmselves had disturbed. In giving you information of recent occurrences I have profited by the occasion to state in detail the misfortunes which have heretofore afflicted this territory, and the causes to which they are to be attributed, in order that public officers engaged in the sphere of their duties may redouble their efforts to preserve order, and that good citizens may contribute by their influence, their talents, and their patriotism to the same object, and that they may exhort the people to industry-the only source of riches. By these means, under the protection of a strong government and of the just laws which govern us, you will be happy, and that is what is most desired by your best friend, DONA(CIANO Vl(Il,. SANTA FE, February 12, 1847. 717 SANTE FE, March, 1847. SiR: Since my letter of the 16th February a number of persons engaged in the late rel)ellionl have been blrought to trial before the United States district court for this Territory. Antonio Mnaria Trujillo was found guilty of treason, n(d received the sentence of the court. A I)etition was immedliately laid before me, signed by the presiding justice, one of associate justices, Iniited States district attorney, thle counsel for tle defense, most of th-e mnembers of the jury before whom the accused( was tried, and many of the most respectable citizens, praying that the execution of tlle sentence of the court' be suspended until a petition could be laid before thle Presi(dent of the United States for the pardon of the prisoner, on the ground of his age and infirmity. Thougl feeling assured that tlle accusedl had had a fair trial, and had been justly sentenced and legally convicted, I still feel justified in granting the prayer of the petitioln, signed as it was by the court and the jury before whom he was tried and convicted. I am informed that a petition -wil lbe immediately forwarded to the President praying for the pardon of Trujillo on the ground above stated. I trust the President will give the matter careful consideration. The prisoner is about 75 years of age necessarily infirm, and evidently near the end of his days; and, although as the head of an influential family, much was done in his name to excite and forward the late rebellion, still, on account of his years and the near termination of his career, I can not l)ut consider hlim a lroper sul)ject for the mercy of the (overnment. Thle United States district court is still inl session at this capital, having under trial three indictments for treason against three prominent persons in the late rebellion. Twenty-four prisoners have been discharged for want of testimony to indict them for treason, and also on the ground that they have been lunder the influence and deceived by the representations of men who had always exercised tyrannical control over them. 1 am informed that tlere are upward of 40 prisoners confined in the northern district awaiting their trial at the coming term of the United States district court for that dlistrict. 1 can not (lo less than comllenll the diligence and at the same time the fairness and justice with which the tribunals of tlhe Territory discharge tlieir duties. With the highest sentiments of esteem, truly, your obedient servant. DONACIANO VIGIL. Hon. JAMES BUCHANANN, Secretary of State, Utirite States. SANTA FE, March 26, 1847. SIR: A few days since the colonel commanding received a deputation of principal men from the Navajo Indians, from whom lie exacted a promise that all the prisoners and stock taken in their late marauding expeditions against the settlements of the southern district should l)e restored by the end of the present month. I have no confidence of the fulfillment of the promise; indeed, these Indians continue to commit daily outrages in the disregard of their promise. I hope measures will be ilmmediately taken by the officer in command here to compel not only a restitution of property and prisoners, but to secure for the future respect for our arms and Government and a lasting submission on the part of these turbulent savages. The interest and prosperity of the Territory urgently demands it. In the late attacks of these Indians many citizens have been deprived of their all, and unless something be speedily done to prevent further depredations the native citizens will have just cause to complain that the promises made to them by BrigadierGeneral Kearny, to the effect that they should be protected against these Indians, their ancient enemies, has been shamefully violated and disregarded. 718 It is with feelings of the highest gratification that I ami al)le t alnnounce tllat Col. A. WV. Doniphan entered the city of Chihuahua on the 1st instant, having miiet the enemy on the dlay previous at Sacramlento, some 18 mliles fronm the city, upwarcd of 4,000 strong, and in an action of three hours, with his conlnland of 1,400 mlemn, including the wagoners of the merchants' caravans, gained a victory almost unprecedented in history, putting the eneimy to flight, leaving 169 deadl on the field, while the conmrnand lost only 2 killed and 7 wounded. I can not close without again urging upon the G;overnmlent the absolute necessity of replacing the present volunteer force in this Territory by a force of Regular troops, onr the ground of greater economy, expediency, and efficiency. In my opinion. both the interests of the United States and of this Territory clearly demand it. With sentiments of the highest esteem, truly, your obedient servant, DONACIANO VIGIL. Hon. JAMES BUCHANAN, Secretary of State of the United States. [Reports on the insurrection against the military government instituted by the Unlited States in California. (See Senate Doc. No. 18, first session Thirty-first Congress, pi,. 488-504.)] No. 36.] HEAD)qUARTERS TENTH MIILITARY DEPARTIMENTS, JMolterey, Cal., A tgatst 16, 1848. SIR: I have the honor to inclose you herewith copies of reports nmade by LieutenantColonel Burton and the officers under his command, the originals of which were received by me on the 15th of June last. These give a history of the suppression of the insurrection in the peninsula, which in its entire management reflects hligh credit upon all concerned. I can only draw your attention to the report of Lieutenant Heywood's defense of San Jose; of Captain Steele's rescue of the American prisoners of war at San Antonio, and of Lieutenant-Colonel Burton's attack upon the enemy at Todos Santos. * * * *-* * * R. B. MASON, Colonel First D)rf tgoors, Contmandbig. Gen. R1. JONES, Adjutant-Genierrl, lITa.shinyton, D. (C. BAI RRAC(KS, LowEI CALIFIORNIA, iSa lJose, Jbebr,irl]y 20, 1848. SIni: I continue my report froml the 22d1 ultimlo, froml which tine 11y force consisted of 27 marines andl 15 seanlen,, of whoinm 5 were on the sick report, lbesiles somle 20 volunteers, Californians, who at least served to swell the nunmbers. Froml that (late the eneiimy were continually in sight of us, intercepting all commnunication with the interior and driving off all the cattle froml tle neighborhllood. A tarty of our own men who went out to endeavor to obtain c(attle were driven in and narrowly escapetl being cut off. We sutcceeded in obtaining a few cow-s, however, which were very necessary to us in the reduced state of our provisionls, as, in addition to our garrison, we were obliged in humanity to sustain solme 50 women and children of the poor, who sought our protection in the greatest distress. I found it necessary, as soon as our fresh beef was constumled, to put all hands on half allowance of salt provisions. We had no bread. On the 4tl of Felbruarv tie enenl close aroundl(l us once,nore and commnenced firing upon all who sthowed theilselves at our portholes 7J9 or above the l)aral)ets. On the llorning (,f the ()th tle enemy appeared to be a little scattered, a consideral)le force being seen riding about some distance from the town, andi at thle sane time a strong party of them, posted at the lower end of the street, were keeping up an annoying fire uIon us. I judged this a favorable opportunity to mnake a sortie upon theml, and, taking 25 men with me, closed with them and dislodged them, driving them into the hills without the loss of a man on our part, and returned to the cuartel. On the norning of the 7th it was reported to me that the enemy had broken into the houses on the main street, and there was some property exposed which might be secured. I took a party of men and went down and brought up a number of articles belonging to the Californians who were in the cuartel; some distant firing took place, but no injury was sustained. On the same day, hearing there were some stores of rice and tobacco in a house some 300 yards down the main street, I determined upon an effort to obtain them, and sallied out with 30 men; these were immnediately fired upon from several different quarters, and some fighting ensued, resulting in the death of one of my volunteers-shot through the heart. We charged down the end of the street, and drove the enemy to the cover of a cornfield at the outside of the town, where they were considerably reenforced, and recomnmenced a llot fire; but we were enabled to save a part of the articles which we were in search of, though we found that the enemy had anticipated us in this object, having forced the building from the rear. On the afternoon of the following day Ritchie's schooner, having provisions for us from La Paz, came in sight and anchored, but a canoe which was enticed toward the shore by a white flag displayed by the enemy was fired upon, and( the schooner immediately got under way. On the 10th the enemy had entire possession of the town; they had perforated with portholes all the adjacent houses and( walls, occupying the church, and, hoisting their flag on Galindo's house, 90 yards distant, held a high and commnanding position, which exposed our back yard and the kitchen to a raking fire, which from this time forth was almost incessant from all quarters upoln us, the least exposure of person creating a target for 50 simultaneous shots. The enemy appeared to have some excellent rifles, allong other arms; and some of them proved themselves tolerably sharp shooters, sending their balls continuaily through our portholes. (n the 11th the fire was warni, but onI our Iart it was rarely that we could get sight of them. In the afternoon of this day we lhad to lament the death of l'assed Midshipman McLanahan, attached to the United States ship C!ltae. A ball striking him in the right side of the neck, a little below the thyroid cartilage, lodged il the left shoulder. HIe died in about two hours. lie was a young officer of great promise, energetic, of mluch forethought for his age, and lbrave to temerity. All lamenlte(d his untimely fate and ail bear willing testimony to his worth. On tile morning of the 12th, at daylight, we discovered that the enemy had thrown llp a breastwork upon tile sand, about 150 yards to the northeast of the cuartel and( entirely commlanding our watering place. We fired several round shot at it with little effect. We succeeded in getting ill some water at night, but at great hazard, tile enemy being in strong force and kept a close watch up(on us. Their force was over 300, speaking within bounds. I imlnlceiately commenced digging a well ill the rear of Mott's house, which is the lowest ground. I found that we had t go through rock and jludgedl e should have to dig about 20 feet. I thought it ilmprudent to llast, as the enemlly, suspecting our intelltion, would throw every obstacle in our way. The nmen worked cheerfully oil this and the succeeding day against all difficulties. ()Our situation was becoming now all imminently critical one, Ilaving, with the greatest economy, but four days' water. ()On the 14th we continuedl digging for water. We found that the enemy had thrown up a seconl( breastwork, more to the westward, giving them a cross fire upon our watering place. There was a continual fire kept up upon the cuartel dluring the day. At 3 o'clock 30 mlinutes p. in. a sail was reported in sighlt, which proved to be the 720 United States ship Cyane. She anchored after sundown. It was of course a joyful sight to us to see friends so near, but I was apprehensive that they could( render us but little assistance, the enemy being so vastly superior in numbers. The enemy continued their firing upon us during the night. On the 15th, at daylight, we became aware that the Cyane was landing mene. They soon commenced their advance, which, for a few moments, was opposed only by a scattering fire; then the enemy opened upon them in earnest. They had concentrated nearly their entire force near San Vincente. We saw the flash of musketry through all the hills above the village. There was the odds of three to one against our friends. Steadily they came on, giving back the enemy's fire as they advanced. There was still a party of the enemy occupying the town, firing upon us. I took 30 men and sallied out upon them, and marched out to join the Cyane's men, who, with Captain Du Pont at their head, had now drawn quite near to us. There were small detached parties of the enemy still hovering about them, and firing at them, but the main body of the enemy had been broken, an(t retired to Las Animas, distant 2 miles. The march of the Cyane's men to our relief, through an enemy so vastly their superior in numbers, well mounted, and possessing every advantage in knowledge of the ground, was certainly an intrepid exploit, as creditably performed as it was skillfully and boldly planned, and reflects the greatest honor on all concerned. It resulted most fortunately for us in our harassed situation. They had but 4 wounded. This can not be termed anything but the most remarkably good luck, considering the severe fire that this heroic little band were exposed to. The loss of the enemy we have not positively ascertained; we hear of 13 killed, with certainty, and general report says 35; wounded not known. Of the total loss of the enemy in their attack upon the cuartel I can not speak with certainty. We have found several graves, and know of a number of wounded, one of whom we have in the cuartel a prisoner. I suppose their total loss to be not far from 15 killed, and many wounded; I am sure it could not be less than this. Our own total loss was 3 killed and 4 slightly wounded. I regret to report the death of Passed Midshipman George A. Stevens, to whom, for his coolness and indefatigable zeal at a time when so much devolved upon hinl, I am most happy to accord the highest credit; and at the same tile I must honororably mention the conduct of a volunteer, Eugene Gillispie, esq., who, although suffering from illness, never deserted his post, and was with me in the sortie of the 7th. The noncommissioned officers and men went through privation, unceasing watchfulness, and danger without a murmur. I can not express too highly my satisfaction in their conduct. Captain Du Pont, immediately upon his arrival here, becoming aware of our situation as regards provisions, took measures for our supply. The day after the battle of San Vincinte he dispatched a train, which brought us by hand (the enemy having driven off all the mules and horses) a quantity of stores and articles of which we stood most in need, among the rest bread, and( has since been unceasing in his exertions for our relief. I can not too earnestly express the obligations which we are under for the prompt and efficient assistance which Captain Du Pont, his officers, and crew have rendered us. I am, sir, respectfully, your obedient servant, CHARLES HEYWOOD, Lieutanant, United States Nalvy, Commanding, Salt Jose. Lieut. Col. HENRY S. BURTON, Uinited States Army, Commacnding Troops i Liower Califoro ia. True copy: W. T. SHERMAN, First Lieutenant, Third Artillery, Acting Assistant A djuttant- General. 721 UNITED STATES BARRACKS, *La Paz, Cal., March 10, 1848. SIR: I have the honor to continue my report of January 16, 1848. Front the arrival of the U. S. sloop of war Cyane at this place on the 8th of December, 1847, until the time of her departure, and the arrival of the U. S. storeship Stoutiampton, February 11, 1848, nothing of particular importance occurred in this portion of Lower California, the enemy having removed the main body of their force to invest San Jose, leaving a few outposts on the roads leading to this place for the purpose of cutting off all our communications with the interior of the country. On the 8th of February I received a communication from the commander of the Mexican forces, which is herewith inclosed with my reply, marked "A." The arrival of the Cyane at San Jose was very opportune, as the gallant little garrison of that place was closely invested and in a distressed condition. The report of Lieutenant IIeywood, United States Navy, commanding at San Jose, is herewith transmitted, marked "B." I can not omit this opportunity of expressing my own gratification and that of my command with the cordial cooperation, whenever necessary, of Captain Du Pont and his officers (luring the time the Cyane was here. About the 13th of February we began to collect horses and saddles for the purpose of mounting a portion of this command. On the night of the 26th of February Lieutenant Young, with a small party, surprised an outpost of the enemy about 7 leagues distant and captured three men. On the night of the 26th of February Lieutenant Matsell, with a small party, surprised another outpost about 6 leagues distant and captured two more. Captain Steele endeavored to surprise another outpost a few nights afterwards, but the enemy, receiving information of his movements in spite of his precautions, were not to be found. * * * - * - -* H. S. BURTON, Lieutenant-Colonel Fir'ct ew Y'ork Tolunteers, Commlanding. Lieut. W\. T. SHERMAN, First Lieutenant, Third Artillery, Acting Assistant Adjutant-General. True copy. rTe. W. T. SHERMAN, First Lieutenant, Third Artillery, Acting Assistant Adjutant-General. HEADQUARTERS UNITED STATES BARRACKS, La Paz, Lower California, March 20, 1848. SIR: I have the honor to report that on the evening of the 15th instant Captain Steele, New York Volunteers, commanding a party of First New York Volunteers, accompanied by Lieutenant Halleck, United States Engineers, Surgeon Perry, 2 foreigners, residents in the country, and 3 friendly Californians acting as guides, aggregate 34, left this place with orders to attack an outpost of the enemy, about 5 leagues distant; or if, from information received on the route, it should prove practicable, to make a forced march upon San Antonio, the enemy's headquarters, and endeavor to rescue the American prisoners of war at that place. The forced march upon San Antonio was made with great success; the enemy was surprised, several killed and wounded, two Mexican officers and one soldier taken prisoners, several arms and a small quantity of ammunition destroyed, the official correspondence and the flag of the enemy captured, one ambuscading party of the enemy defeated, and the command safe in La Paz within thirty hours from the time 1394-03 46 722 it started. Our loss was but of one man killed-that of IH. Hipwood, sergeant in B Company. Several of the men Had their clothes pierced by the enemy's shot; a ball entered the saddle of Captain Steele, and the horses of Lieutenant Halleck and Private Melvin, of B Company, were wounded in those engagements. All engaged in the expedition acquitted themselves with great credit; and particular praise is due to Captain Steele, who commanded the troops, and to Lieutenant Halleck, by whose advice and assistance the expedition was undertaken and so successfully executed. Inclosed herewith is Captain Steele's report. I am, sir, very respectfully, your obedient servant, HENRY S. BURTON, Lieutenant-Colonel, New York Volunteers. Lient. W. T. SHERMAN, Acting Assistant Adjutant-Generarl, Tenth Military Department, Monterey, (Cl. LA PAZ BARRACKS, Lower California, March 20, 1848. SIR: I have the honor to report that, in compliance with your order, I took comtmand of the mounted force destined for an incursion into the interior. On the 15th, and between the hours of 9 and 10 p. m., we started. On examination I found our whole force to consist of 27 noncommissioned officers and privates, 3 officers (Surgeon Alexander Perry, Acting Lieutenant Scott, B Company, and myself), Lieutenant Halleck, United States Engineers, who kindly volunteered his valuable experience and services, and Messrs. Herman, Eherenberg, and Taylor, residents of this place, and 3 guides, Californians; aggregate, 34. On conferring with the officers, we were unanimous in the conclusion to proceed with all possible speed direct to San Antonio (the headquarters of the enemy) instead of attacking the advanced party at the ranch of Noviellas, with the principal object of rescuing the American prisoners of war confined there and doing all else we could. We took the route by the ranch of the Tuscalamas. Proceeding cautiously, we passed an outpost of some 50 men, without being observed by them, and reached the top of the mountain, overlooking and 8 miles distant from San Antonio, at daylight on the following morning, where we captured one of the "enemy's pickets" and, quickening our speed, we descended and passed up the arroyo to the east of the town, and, arranging the men, we charged into the town at full speed. A small party having been previously detailed to secure the persons of the officers of the enemy, the rest were directed against the building occupied as a cuartel for the soldiers, and not finding any there, one of the liberated captives directed my attention to a building on the other side of the arroyo, to the east of the town, distant from the plaza about 150 yards, and commanding it (to which I afterwards learned the soldiers had been removed but the day previous, thereby deranging all our previous plans of attack), from which, with a small force of the enemy drawn up in front, a brisk fire of musketry opened upon us. Having first gained our object in rescuing our men, besides taking two of their officers prisoners, I ordered the men to dismount and rally under cover of the church on the east side of the plaza. The party sent to secure the officers were unsuccessful in securing the commandant (he escaped in his night clothes, having just arisen from his bed), but the second in command, Captain Calderon, and the adjutant, Lieutenant Arsse, were taken, their flag and the private and public papers secured. When a sufficient number of our men had rallied, we sallied out and charged the enemy in position and drove them in all directions to the adjacent hills, killing 3 of their number and wounding 7 or 8. The rout of their force being complete, which we learned amounted to some 50 men, 723 and being too tired to pursue them, we collected all the arms they abandoned (some 30), their trumpet, bullet molds, etc., destroyed them, and left them in the plaza, as it was impracticable to carry them with us. I have to record the loss of one of our number, Sergt. Thomas M. Hipwood, of B company, who fell dead in the charge, pierced by a bayonet andl two balls. "A better and a truer man never fell in his country's service or the performance of his duty, and his loss will ever be lamented by those who knew his worth." Pantaloons, cravats, hats, horses, saddles, attest the numerous narrow escapes, but none wounded. Not more than half an hour elapsed before we were on our way back. We halted at a ranch after traveling some 10 miles (owing to the accession to our number of men, and but one or two horses, many had to walk that distance) for the first time to refresh. In two hours we were on our way again, but little recruited in strength. Proceeding slowly, we reached the mountain pass of Trincheras a little before sunset and were just entering an arroyo, bordered by elevated banks and a thick growth of unlerbrush, when a fierce fire of musketry opened upon us in front; a dismount and rally in front was but the work of an instant, the men standing fire like veterans. I ordered the advance guard to deploy the right and left, who drove them from tree to tree and hill to hill, while the main body proceeded slowly, leading their horses, until we had passed the dangerous ground, when we mounted and took a different road, diverging to the right, which would make the distance much farther, but the traveling much safer. There was none wounded on our side. One of the captives, Captain Calderon, received a severe wound from a rifle ball in the right breast from the fire of the enemy, which did not prevent his riding, however; the horses received several wounds, but not so as to disable them. The loss on the part of the enemy was some five or six killed and wounded. We continued our march, proceeding some 3 miles farther, when our rear guard was attacked; but on firing one musket at them, they scampered off and scarcely a charge ensued. We proceeded cautiously, but our horses were getting now so fatigued that they would lie down, and it was with the greatest perseverance and exertion that we continued advancing, but finally arrived at the barracks on the morning of the 17th at 2 a. m. -laving accomplished the extraordinary distance of 120 miles (the route we took) in less than thirty hours on the same horses, with but little food or refreshment, stopping but once to feed, through the most rocky country and the roughest road that can be traveled, and by men many of them totally unused to riding and without any previous preparation, I can not express in terms too commendatory the coolness and bravery displayed by the men of my command. Acting Lieutenant Scott, B Company; Sergeant Teasley, A Company, and Sergeant l)enneston, B Company, were conspicuous. To Surg. Alexander Perry, Lieutenant Halleck, United States Engineers, most sincere thanks are due for their counsel and assistance. And to Mr. Herman Ehrenberg, "my volunteer aid," to say that he fully sustained that reputation for gallantry, coolness, and bravery that has been awarded to him on former occasions is enough. And to Luz, Morano, and to Juan de Dios Talamantis, our Californian guides, I am greatly indebted. Their bravery and fidelity deserve to be duly appreciated. Respectfully, your obedlient servant, SEYMOUR l(. STEELE, (Captain, First New York Regiment, Comnnanding. Lieut. Col. HENRY S. BURTON, United States Army, Commanding United States Forces, etc. 724 UNITED STATES BARRACKS, La Paz, Cal., April 13, 1848. SIR: I have the honor to acknowledge the receipt of your letter of March 1, 1848, and to report the arrival of the army storeship Isabella at this place on the 22d of March, 1848, with Captain Naglee's company (1) New York Volunteers, and 114 recruits for the detachment of New York Volunteers stationed at this place. The rescue of the prisoners of war on the 15th ultimo caused great excitement among the enemy, and tended very much to disorganize their forces, and the important arrival of the reenforcements to my command determined me to take the field as soon as possible. Accordingly, I left this place on the morning of the 26th instant with 217 officers and men; Lieutenant IHalleck, United States Engineers, acting chief of staff, and Passed Midshipman Duncan, United States Navy, temporarily attached to the mounted portion of Captain Naglee's command. The afternoon of the 27th a party of 15 men captured, in San Antonio, Pineda, the commander of the Mexican forces, with his secretary, Serano. The morning of the 29th, having received information that the enemy had concentrated their forces in Todos Santos, we pressed on with all speed, fearing they might evade us by retreating toward Magdalena Bay. The morning of the 30th, about 10 o'clock, having received accurate information respecting the enemy, Captain Naglee, with 45 mounted men, was dispatched to intercept the road leading from Todos Santos to Magdalena Bay, and, if practicable, to attack the enemy in the rear at the same time our main body made its attack in front. The road leading from Todos Santos to La Paz, for some distance before reaching the first-named place, passes through a dense growth of chaparral (very favorable for an ambush), and in this the enemy made their artangements to receive us. We left the road about 5 miles from Todos Santos and marched along a ridge of high land on the north side of the river, having full view of the enemy's operations. They then took possession of a commanding hill directly in our route, between 3 and 4 miles from Todos Santos, with their Indians in front. Companies A and B, under the direction of Lieutenant Halleck, were deployed as skirmishers in such a manner as to expose the enemy to a cross fire. The enemy opened their fire at long distance, but our force advanced steadily, reserving their fire until within good musket range, when it was delivered with great effect, and the enemy retreated very rapidly after a short but sharp engagement. At this time Captain Naglee, being near Todos Santos and hearing the firing, attacked the enemy in the rear, and after a severe action completed the dispersion. Our men and horses being too much fatigued by their long march to pursue the scattered enemy, we marched on to Todos Santos. The loss of the enemy in this engagement can not be ascertained with any accuracy; we know of 10 killed and 8 wounded. One man and the horse of Acting Lieutenant Scott were slightly wounded, the enemy, as usual, firing too high. Our officers and men fully sustained the character they won on the 16th and 27th of November last. My warmest thanks are due to Lieutenant Halleck for his assistance as chief of staff, and I present him particularly to the notice of the colonel commanding for the able manner in which he led on the attack on the 30th ultimo. Captain Naglee also deserves particular notice for the energetic and successful manner in which he fulfilled his instructions. A copy of his report is herewith inclosed. On the 31st ultimo Captain Naglee, with 50 mounted men of his company, was ordered to pursue the enemy in the direction of Magdalena Bay. He returned to La Paz on the 12th instant, having pursued the enemy very closely, capturing 5 prisoners and some arms. Lieutenant Halleck started for San Jose with a party of mounted men, consisting 725 of 1 officer and 25 noncommissioned officers and privates, on the 5th instant, for the purpose of communicating with Captain Dupont, conmmanding U. S. sloop of war Cyane. He returned here on the 11th instant, having captured 10 prisoners on his march and taken a number of arms. From him I learn that the naval force at San Jose have thirty-odd prisoners, and among others Mauricio Castro, the self-styled political chief of Lower California. Lieutenant Selden, with a party from the Cyane, made a most opportune march on Santiago, where he captured a number of the enemy who had fled from the field of Todos Santos. Castro, who commanded the enemy's forces in the action on the 30th, was arrested near Maria Flores by the civil authorities and delivered up to Lieutenant Selden. During the stay of our main body at Todos Santos 14 prisoners were captured, among them two sons of the reverend padre, Gabriel Gonzales, officers of the Mexican forces. We left Todos Santos on the 5th instant and arrived at this place on the 7th. The result of this short campaign has been the complete defeat and dispersion of the enemy's forces. We have captured their chief and 6 officers and 103 noncommissioned officers and privates, and others are daily presenting themselves to the civil authorities in different parts of the country. The captured arms have been given to those rancheros known to be friendly to the interests of the United States for their protection. I am, sir, with much respect, your obedient servant, HENRY S. BURTON, Lieiuteatnt- Colonel, New York Volunteers. Lieut. W. T. SERMMAN, Acting Assisttant Ad jutant- (enerl, Te7alth Mlilitary Department. TODOS SANTOS, IMarch 30, 1848. I have the honor to report that after receiving your verbal order at 10 o'clock a. m. this day " to select the men" from "those of my company that were mounted, whose horses would be able to carry them more ex)peditiously to the junction of the road by the arroyo Muelle at its mouth with the road from Todos Santos, in the direction of Magdalena Bay one league and a half from Todos Santos, and there ascertain whether the enemy had passed toward Magdalena Bay, and if so to follow them; or if still remaining at Todos Santos to attack them or not, at my discretion," I selected 45 men, and at 1 p. m. arrived at the point designated, where I received information that the whole of the Mexican forces, numbering from 200 to 300, were lying in position on the main road leading out to Todos Santos and about half a league from it. I immediately dispatched a courier to you with this information, adding my determination to attack him in the rear about the time you should approach from the front. The men and horses were then allowed one hour's rest-the latter having been fiftysix hours without feed. At 2 p. In. we again mounted; at 3 passed through Todos Santos and passed as rapidly as our horses could bear us toward the point occupied by the enemy, who had been informed of our approach. When half a league without Todos Santos we discovered a body of cavalry posted, partly concealed among a heavy growth of cactac, at the foot of a steep ridge, and a body of Indians and Mexicans in line along its summit-in all about 120. The detachment was ordered into line within 50 yards of the first, and whilst forming, and before it could be dismounted, received the fire of those at the foot of the ridge, who retired toward those at the summit, where they were joined by a large number who came precipitately from the other side. 726 The detachment, after leaving a guard of 10 men with the horses, was marched by a steep rocky path half way up the side hill, it being the only approach, and there deployed to the right and left and charged upon the summit. The enemy continued their fire until we had approached to within 50 yards and commenced firing, when they broke and ran. They were pursued until they were completely routed and until, fearing my command was becoming too much scattered among the immense cacti with which the surface of the whole country is covered, they were recalled and we returned to this place by 5.30 p. im. A number of the bodies of the enemy was found, but it was impossible to say what was their loss. A number of their horses and a quantity of their baggage was captured. Our thanks are due to First Lieut. George H. Pendleton, of my company, and to Passed Midshipman James M. Duncan, of the United States Navy, for the very satisfactory manner that they performed every duty. Of the men, I could not in justice to them say less than that volunteers never behaved better. I have the honor to be, very respectfully, your obedient servant, HENRY M. NAGLEE, Captain, First New York Regiment, Commanding Detachment. Lieut. Col. H. S. BURTON, Commanding. LA PAZ, LOrER CALIFORNIA, April 16, 1848. SIR: Inclosed herewith I send you Captain Naglee's report of his operations from the 30th of March, 1848, when he left Todos Santos, until the 14th instant, when his whole command arrived here, with a copy of my instructions to him; attached also is a copy of General Scott's General Orders, No. 372, of 1847. Before leaving Todos Santos Captain Naglee held much conversation with Lieutenant Halleck and with me respecting the fourth article of those general orders, and he was distinctly told, particularly by Lieutenant Halleck, that if he took any prisoners they could not be shot without the sanction of a council of war; and that he (Captain Naglee) could not, under the circumstances, order such council. From San Ilarius, April 8, 1848, Captain Naglee reported to me, and I considered the report, approving of the course he had thus far pursued and directing him to return to La Paz. On the 1lth of April, 1848, I received a communication from Captain Naglee, which is herewith inclosed with my reply. Captain Naglee did not receive the reply, as the courier could not find him. When within a mile or less of La Paz the two prisoners-Juan Jose Brule, a Mayo Indian, and Antonio Keyes, a Californian and a resident of La Paz-were shot by order of Captain Naglee, in my opinion in direct violation of General Scott's order, No. 372, and of my instructions to him. The case is thus laid before the colonel commanding for his decision and opinion as to the course to be pursued respecting it. I am, sir, very respectfully, your obedient servant, HENRY S. BURTON, Lieutenant-Colonel, New York TVolunteers. Lieut. W. T. SHERMAN, Acting Assistant Adjutant-General, Tenth Military D)epartment. CARISALO, April 11, 1848. SIR: We arrived here yesterday at 3 p. m., intending to push on to La Paz, but our animals are so tired that I am compelled to remain here until this afternoon, and will hope to get to La Paz during to-morrow morning. 727 I have no other news to communicate except that the country has been well cleared of its cursed vermin, and that there are not half a dozen Taquies south of Punification. I have 5 prisoners with me, but shall shoot 2 of them when near La Paz, in sight of the ruin that they have caused. I have sent with this a note to Lieutenant Penrose for 150 rations of hard bread and 150 rations of coffee. Mr. Pendleton will not get here before to-night and will not be able leave here before to-morrow evening. Very respectfully, your olbedient servant, H. M. NA(GLEE. Lieut. Col. H. S. BURTON, Commanding, La Paz. A true copy. HENRY S. BURTON, Lieutenant-Colonel, Newi York Volunteers. LA PAZ, LOWER CALIFORNIA, April 11, 1848. SIR: In your unofficial note of to-day you mention your intention of shooting two of your prisoners when near La Paz, in sight of the ruin they have caused. I am under the impression that your instructions will not admit of this course. You will therefore bring all of your prisoners to La Paz. I am, sir, with much respect, your obedient servant, HENRY S. BURTON, Lieutenant-Colonel, New York Volunteers, Commanding. ) Capt. H. M. NAGLEE, New York Volunteers. A true copy. W. T. SHERMAN, First Lieutenant, Third Artillery, Acting Assistant Adjutant-General. HEADQUARTERS FIRST DETACHMENT NEW YORK VOLUNTEERS, Todos Santos, iMarch 31, 1848. SIR: You will leave this place this afternoon at 4 o'clock, with the mounted men from your company, for the "Cunano," distant about 50 miles, on the road to Magdalena Bay, for the purpose of intercepting any of the enemy's forces which may move in that direction. On arriving at that place you will be guided in the course then to be pursued by such information as you may obtain, it being the object to follow and cut up the scattered forces of the enemy wherever they may be found. And even before reaching "Cunano " you will be at liberty to change your direction if, in your opinion, circumstances justify you in doing so. If you should not again join the main body, you will proceed to La Paz after having accomplished, so far as you may be able, the object indicated above. The movements of the main body will depend entirely upon the information respecting the enemy's position; but it is hoped that you may be able to communicate to headquarters anything you may learn of the enemy's operations. In your treatment of the Taquies you will be governed by General Orders, No. 372, of 1847, of General Scott's, regarding them as robbers and murderers who are bound by no civilized rules of warfare. I am, sir, very respectfully, your obedient servant, HENRY S. BURTON, Lieutenant-Colonel First New York Volunteers, Commanding. Capt. H. M. NAGLEE, First Neuw )ork Volunteers. 728 The undersigned would respectfully report that he received the above order at 4 o'clock p. m. on the 31st of March, and at 5 o'clock p. in., with 50 men, left Todos Santos to pursue the enemy. We had scarcely commenced our march when it was discovered that the guide upon whom we were most trusting for our information, and who resided at "Cunano," had not joined us. The interpreter was sent back to advise you of this fact, but nevertheless this guide did not join us. When near the mouth of the arroyo Muel'e we were informed that Jose Rosa Merina, a Mexican officer, with 16 men, and Colegial, the Taqui chief, with 26 Indians, had gone toward "Carisalle" to wait for others to join them. We were informed that the distance to Cunano was 55 miles, by a heavy sandy road, without a habitation or drop of water. We had but three days' provisions, and the animals, although they had rested twenty-four hours, had filled themselves with the stocks of the green corn and sugar cane and were not in a condition to travel the road to "Cunano." I therefore concluded to take the road to "Carisalle," and thence by the road to "Aripes," near La Paz, where I could order in advance an additional supply of provisions, and proceed to San Ilarius and "Aqua Colorado," where all the enemy must necessarily pass who were retreating toward "Mulige." On the morning of the 1st of April we reached "Carisalle," 36 miles from "Todos Santos," but were disappointed in learning that the forces above referred to had passed during the night without stopping, and a few hours afterwards, while the men were sleeping, a small party of cavalry made their appearance and were pursued, but they ran into the cactac, and it was impossible to follow them. At 6 p.. we were mounted, and followed the trail of the previous night for about 6 miles, when it left the road and entered the cactac, and we afterwards learned they had been *advised of our pursuit and changed their route. On the morning of the 2d we arrived at the "Aripes," and were here detained unnecessarily twenty-four hours waiting for a detachment that had been dispatched in advance for provisions. They returned on the 3d and reported the capture of two Mexican soldiers at Refugio. During the 3d we passed through "Rodrigues, El Caxon de los Reys," and at midnight reached "Los Reys." On the evening of the 4th we arrived at Guadalupe, and, leaving 25 men with Lieutenant Pendleton, with the remainder we pressed forward for "San Ilarius." When within 9 miles of that place we were informed that a party of 50 Taquies had passed from "San Ilarius" to "La Junta," and we at once turned in that direction. At 4 p. m. of the 5th, after having searched all the places where the Indians would have stopped, we approached the last hut, and the only one of the four in "La Junta" that had not been deserted, and discovered the fires of the Indians, which were 200 yards from the house and on the other side of a lagoon, around which it was necessary to pass. We dismounted, and with 15 men were in the act of surrounding them, when one of the guides discharged his musket, which awakened the Indians. We charged in upon them, but it was too dark to use powder and ball, and they mnade their escape. We, however, succeeded in capturing all their horses, arms, and amllmunition and in taking two prisoners, which were afterwards ordered to be shot. In consequence of the outrages that this band of Indians were committing and the impossibility of my overtaking them (for I could not obtain fresh horses), I considered some extraordinary effort absolutely necessary to drive them out of the country and at the same time to reassure the "rancheros," who were so much intimidated by the diabolical acts of these villains that many of them had left their houses and concealed their families and the little property they could carry with them in the mountains. I therefore called upon the authorities and rancheros (see the copy attached) to arrest them in their flight, and sent a detachment of a sergeant and 9 men, in company with Don Juan de Dios and Don Questis, responsible Mexican friends, to pursue the Indians as far as " Punification." 729 It being impossible for our tired horses to go farther, suffering for the want of food, barely living upon sprouts of the mesquit tree, and there being no water at the places I have named-frequently 30 and 50 miles apart-and learning that a number of Mexican officers with 30 to 40 men were concealed near San Antonio, I determined to return, and on the 6th I ordered Lieutenant Pendleton to take the road by "Agua Colorado," while I took that to " San Ilarius," and to meet at "Coneja," where the roads join. On the 7th I learned that two Mexican soldiers were concealed about the premises of Don Juan Gomez De Ayer, a Portuguese, living at San Ilarius. He denied any knowledge of them until he was placed in arrest and ordered to be taken to La Iaz, when lie had them produced. One of them had been wounded at San Jose. On the morning of the 8th we reached Coneja, 40 miles, and Lieutenant Pendleton joined me and brought one prisoner that one of his patrols had taken near Agua Colorado. (n the 9th we entered Cunano, 18 miles. Here, as at Coneja, both on the Pacific coast, we found a little very brackish water and some salt grass of two years' standing, there having been no rain (luring that time. We learned that there had passed, in all, about 90 persons during the 2(1 and 3d; that none had passed since; that the greater part of these had been driven from the other roads in consequence of our close pursuit, and they were so mnuch pressed, knowing tley would receive no quarter, that many of them had thrown away their arms. On the morning of the 10th we entered Carisalle, 45 miles, without water or grass, and hearing of the surprise of the Mexicans near San Antonio by Lieutenant Selden, of the Cyane, we rested our tired men and animals during the 11th, and oil the 12th returned to La Paz, and Lieutenant Pendleton and Sergeant Roach on the 14tll, the former bringing three and the latter two prisoners. Although not so fortunate as to come in close contact with many of the enlemy, we have at least succeeded in preventing any reunion and in keeping them moving toward Loretto and Mulige, toward wllich points they have proceeded with the most astonishing rapidity. Since the evening of the 31st of Maarch we have passed over all the road and searched all the ranchos between Todos Santos and La Paz, and as far north as Punification, and clearedl that part of the country with the ruin that threatened to destroy its vitality. During the pursuit we have traveled 350 lmiles over a road-or rather a path, for there are nothing but narrow mule paths in any of lower California-through a worthless waste of sandy, rocky country, literally covered with the cactus and various species of leafless thorn bushes so closely matted together that none but a Californian with his leather clothes and armor on can pass through them. The sun was so hot that we could not travel under it, and there was no water except at the places named, which was frequently so brackish that the thirst was increased more than diminished. At these places we found one, and never more than two, miserable huts, in which the occupants barely existed upon.some milk and meat, and the cattle so exceedingly poor that they could hardly sustain their frames. My command suffered much from the burning sun, (lust, and the want of their full rations, living upon nothing but hard bread and fresh beef, and more than half the time upon the latter alone. I have the holnor to be, very respectfully, your obelient servant, HENRY M. NAG LEE, Ca(ptin, First New )York Regiment, Commanding Detachment. HENRY S. BURTON, Lieutenant-Colonel Fir.st.New York.Regiment, (ommanding, etc. 730 To all whom it may concern: Know ye that authority is hereby given, and the authorities and rancheros are hereby required, to arrest, and in the arrest to use any force that may be required, even to the taking of life, in order to bring to immediate punishment, a number of banditti who are known by the name of Taquies, and who have committed robbery, arson, murder, and rape, and are now committing the most infamous crimes through the whole country, and in consequence of which they have been declared outlaws and their lives forfeited. Any prisoners that may be taken will be delivered to the nearest United States forces, and any lives that may be necessarily taken under this authority will be reported to the commanding officer of the United States forces at La Paz. Given under ny hand at Junta, Lower California, this 5th day of April, A. D. 1848. HENRY M. NAGLEE, Captain, First New York Regiment, Commanding Detachment New York Volunteers. (To the authorities and rancheros at Cayote, Punification, etc., to Mulige.) LA PAZ, LOWER CALIFORNIA, April 17, 1848. SIR: I have the honor to send you herewith (in duplicate) returns for this post for the months of January, February, and March, 1848, and a copy of the written orders issued during the same period. I am happy to report that the defeat and dispersion of the enemy on the 30th ultimo has been complete, and seems to have concluded the insurrection here. The southern part of the peninsula is perfectly quiet. It is rumored that a party of the enemy has reunited at Mulige, but not in sufficient force to be effective. The present force in Lower California is thought to be sufficient to keep the country quiet, provided our squadron can prevent communication with the coast of Mexico for the purpose of bringing over arms, ammunition, and men. To-morrow nine prisoners of war, among them Manuel Pineda, the late Mexican commander in this country, and the reverend padre, Gabriel Gonzales, with his sons, will be sent to Mazatlan. * -*- * *-X- *-X- * HENRY S. BURTON, Lieutenant-Colonel, New York T'olunlteers. Lieut. W. T. SHERMAN, Acting Assistant Adjutant-General, Tenth Military Department. IN I) E X. Prepared by FtRANK L. JOANNXINI, of tile Insular Division, War Department. [References are to pages.] A. Abaca: export duty on, in the Philippines: 218. Absorbtion: of Texas: 38. Acquisition of territory: by the United States, right of, an inherent right of sovereignty: 66, 82. incidental to power to make war: 82. treaty-making power: 82, 94. by discovery and occupation, etc.: 51. for conversion into States: 81. of islands from Spain, report on legal status of: 37 et seq. confirmed by cession by treaty: 94. powers of governing newly acquired territory I) Ullited States: 66. right of United States to acquire: 66, 94, 108. methods of: 51. questions relating to, in nii tte States, belonging to political department: 47. (See Territory.) Acts, reconstruction (see Reconstruction acts): nonintercourse: 220, 221. Adams, John Quincy: action on controversy between Andrew Jackson and Judge Fromentin: 139. declaration that Constitution, etc., does not extend e.r propio vigore over newly acquired territory: 140. Administration: of estates of deceased persons in Cuba. etc. (See Collector of customs; Marti y Buguet; Dubuque, Jacob.) Admiralty matters: courts can not be established lIy President in conquered territory: 22. courts in Porto Rico can not ble granted jurisdiction by President in: 30. jurisdiction, in what courts exercisable: 95, 267, 268 (See Confiscation; Captures.) Admittance (American vessel): seizure of, during Mexican war: 22. condemnation of, as lawful prize: 22. libel filed against captain of war vessel: 22. opinion of court on: 22. Ahern, Capt. Geo. P.: in charge of forestry bureau in the Philippines, report of: 607. Akaba, the: case of: 420. 731 732 Alabama: creation of State of: 44. how territory of, acquired: 44. inhabitants of, declared in a state of insurrection: 253. laws of, relating to treason, etc.: 671. Alaska: discussion il Congress on appropriations for purchase of: 39-40, 152-157. acquisition of, by United States, by treaty with Russia, 1867: 42, 84. title of the soil vested in the United States by ratification of treaty with Russia, 1867: 42. powers of Congress over: 61, 88. laws made operative in: 80. is unorganized territory: 80. governed by Congressional legislation: 88. proceedings in Congress on bill providing for purchase price of: 151. treaty for purchase of, proclaimed: 170. extension of customs and other laws over: 170. Alfonso XII (Spanish war vessel): disposition of wreck of: 556 et seq. (See Vessels.) Alguacil mayor. (See High sheriff.) Alienation of public property: laws relating to, pass away with surrendered sovereignty: 27. (See Property, public.) Aliens: domicil, how acquired: 118. citizenship can not be conferred by President and Senate on: 126. how citizenship may be acquired in the United States: 119. naturalization of: 119. protection of, against acts of foreign Governments; Koszta's case: 118. (See Allegiance; Citizenship.) allegiance due from: 115. can not present claims against the United States to Congress: 340. claims of, for unliquidated damages against the United States must be presented to State Department: 339, 409. rule of Congress regarding consideration of claims of: 340, 409. letter of Hamilton Fish regarding claims of: 340, 413. must address Government through diplomatic representatives of their own Government: 340, 341. domiciled in belligerent country must share in fortunes of war: 341. sovereign not responsible to, for injuries from belligerent action or insurgents: 344. Government liable for injury inflicted on, through its negligence: 344. cases in which, may maintain suits in United States Court of Claims: 344. courts of Spain may entertain suits of, against Government: 345. (See Claims.) Allegiance: all powers of government rest upon: 114. there can be no government without: 114. must not be confounded with citizenship: 114. is created by the consent of the individual: 114. originates with man: 114. derivation of: 114. acquired: 114. 733 Allegiance-Continued. local or actual, defined: 115. natural, originally perpetual: 115. may be absolute or qualified: 115. theory under the feudal law: 115. right to transfer, an inherent right of man: 116, 477. consent to, is presumed from the fact of residence: 117. correlative of, is protection: 118. citizenship is not necessary resultant of acknowledgment of: 118. report on right of Spain to accept renewal of, etc.: 173. of inhabitants of islands affected by treaty of 1898 with Spain: 173. how American citizenship may be acquired: 119. rights of English subjects in American colonies: 116. right of inhabitants of Alsace and Lorraine to retain, to France: 475. (See Citizenship; Aliens.) Alliance: treaties of, not binding upon new State formed l)b separation: 190, 303, 327, 639. Alsace and Lorraine: right of inhabitants of, to retain allegiance to France: 475. American civil war: President's proclamation blockading Southern ports: 220. cotton and other articles treated as contraband: 222. end of, as regards private rights: 17, 363. public matters: 17, 363, 364. American Commission at Paris, 1898: action of, regarding contract obligations: 183. position taken by, etc., must be supported by coordinate branches of Governmnent: 184. position taken by, regarding Cuban bonds issued by Spain: 192. sovereignty of United States over Philippines: 247. declaration of, regarding open door in the Philippines: 331. American Insurance Company v. Canter: question involved in: 95. arguments, etc.: 93 et seq. opinion of Johnson, J.: 93. views of Marshall, Ch. J.: 94. American Mail Steamship Company: claim of, forservices in towing United States transport McPherson, report on: 414. services rendered by, to be considered as rendered under contract: 417. what to be considered in settling claim of: 420-421. (See Salvage.) American Publishing Co. v. Fisher: views of Brewer, J., on right of trial by jury in District of Columbia: 111. Annexation: of territory. (See Acquisition of territory; Territory.) of Hawaiian Islands: 42. Appropriation: for expenses in marking, etc., boundary line between United States and Mexico: 44, 101. for purchase of Louisiana. (See Treaty; Louisiana.) for purchase of Alaska, discussion in Congress: 39-40,152-157. Arcos, Duke of: Spanish minister at Washington, letter transmitting memorandumn of claim of Jose Cagigas: 528. (See Cagigas, Jose.) 734 Arizona: laws relating to treason, etc.: 671. Arkansas: formation of State government in: 24, 244. refusal of Congress to recognize State government: 24, 244. inhabitants of, declared in a state of insurrection: 253. laws relating to treason, etc.: 672. Army, United States: increase of: 215. in the Philippines: 215, 228. officers, right of, to compensation for extra services. (See Governor-general of Cuba.) acting as military governors, bound to obey orders of superior officers, etc.: 28. conduct of affairs of civil government by, tolerated, not required: 422. provisions of Revised Statutes regarding allowances to: 423. purpose of: 423. detail of, as military instructors at educational institutions: 429. allowance of extra compensation not contrary to Constitution: 430. statute prohibiting, from holding civil offices, intention of: 431. approprtation bill, franchises, etc., in the Philippines. (See Spooner. amendment. ) Regulations, provisions of, regarding property captured b)y United States forces: 622. Articles of compact: between original States, etc., and inhabitants of Northwest Territory: 75, 76, 83. Attorney-General: opinion of, regarding mining claims in Cuba, etc.: 370 et seq. letter to Secretary of War regarding wreck of the Alfonso XII in Cuban coastal waters: 556. (See Vessels.) landing of cables in Cuba and Porto Rico, opinion of: 355, 539. letter to Secretary of War regarding laws in force on change of sovereignty: 28, 29, 188, 200. opinion of, on application to construct wharf at Ponce: 353. mining claims in Cuba, etc.: 371-373. concession to Dady & Co.: 359, 389, 408, 536, 573, 631. Torre Pla concession for tramway in Habana: 589. views on right of expatriation: 175. extra allowances to army officers: 429. B. Bank of the United States: act of Congress to incorporate subscribers to: 172. establishment of branch in New Orleans: 172. Banks and banking: in the United States subject to legislative regulation and control: 258. property rights subject to j us publicuin: 259. act of Philippine Commission to prevent discrimination against United States currency not in contravention of principles established for protection of property rights in the United States: 260. Batteries, stationary: left by Spain in Cuba and Porto Rico, report on suggested agreement for iisposition of: 566-571. 735 Batteries, stationary-Continued. failure of evacuation commissions to agree as to disposal of: 567. in the Philippines and Guam, agreement as to: 567. Baylies, Capt. James: collector of customs at Cienfuegos, Cuba: 478. (See Dubuque, Jacob.) Beds of streams: in Porto Rico, etc., the property of the Crown: 496. (See Streams.) Belligerent occupation. (See Military occupation.) Belligerent parties: in a public war are independent nations: 211. not required to pay for damages to property in track of war- 341, 343. may occupy and seize property of private individuals without liability for compensation: 345. Belligerent rights: authority of United States to exercise, in dealing with insurrection in the Philippines: 211-218. customs duties exacted by government of Philippines enforced by exercise of: 211. may be exercised by sovereignty engaged in suppressing insurrection; 212. exercise of, by United States in Philippine Islands not affected by treaty of peace with Spain: 216. right of United States to exercise, in territory in insurrection: 227. confiscation of enemy's property: 87. right to levy contributions on enemy's property: 217. Benton, Thomas H., Senator: description of debate in Congress on extension of Constitution to Upper Caiifornia and New Mlexico: 96 et seq. statement regarding origin of doctrine announced in Dred Scott case: 84. "Thirty Years in the United States Senate," quoted: 96-100. Birkhimer: on situation existing in rebel States: 18, 365. regulation of trade, etc.: 225, 303, 325, 338. on military government: 18, 363. Black, Wm. M.: chief engineer of Habana: 453. Blair, Frank P., district attorney in New Mexico: letter to Attorney-General regarding prosecution of insurgents: 271-272, 501-502. Blockade: right of Federal authorities to, ports of rebellious States: 211. Lincoln's proclamation declaring, of ports of rebellious States: 220. Board of harbor works of Ponce, P. R.: application of, to United States Government for assistance in collecting claim against Spain: 484, 485. how created: 484. approval by Secretary of War of views set forthl in report: 485. Bonds of Cuba: statement of Whitelaw Reid regarding: 187. amount issued by Spain: 192. declarations contained in: 192. contention of Spanish Commission at Paris (1898) regarding: 192. American Commission at Pans (1898) regarding: 192: Boundaries: of Mexican Republic, (lesignated by treaty of 1848. 41. 736 Boundaries-Continued. of United States, do not advance with successful armies, etc.: 41. can not be extended by military arm of Government: 48. of a nation, will of legislature must be respected: 47. determination of, a political question: 250. (See Territory; United States.) Bradley, J.: opinion in legal-tender cases: 69. Brewer, J.: opinion with reference to powers of a Territory: 108. views in American Publishing Co. r. Fisher on right of trial by jury in District of Columbia: 111. British North America: reciprocal treaties between United States and Great Britain concerning fisheries in waters of: 329. Brown, Maj. Geo. L.: collector of customs at Cienfuegos, Cuba: 478. (See Dubuque, Jacob.) Brown, J.: decision in Dooley v. United States: 226, 242. Brown v. United States: sovereignty as to declaring war and as to its execution, etc.: 279, 280. confiscation of private property: 280, 281, 368. Brussels project of an international declaration concerning laws and customs of war: provisions of: 11, 229, 424. Buchanan, James: statement respecting continued existence of military governments in New Mexico and Upper California: 16. letter from, to William V. Vorhies, regarding post-offices, etc., in California: 102. Buena Vista, Countess of: report on petition of, for relief and indemnity: 194-209. refusal of United States authorities to allow, to enjoy emoluments appertaining to office of high sheriff of Habana: 195. appeal to General Ludlow and General Brooke: 196. relief demanded by: 196. contention of, regarding office of high sheriff of Habana: 196. determination of the Secretary of War: 209. (See High sheriff.) Business intercourse: between citizens of States at war, unlawful: 221. (See Commerce; Trade.) C. Cable concessions in Cuba. (See French Cable Company: International Ocean Telegraph Company; Cuba Submarine Telegraph Company; United States and Haiti Telegraph Company.) Cables: international convention for protection of submarine: 287. (See Cuba.) Cagigas Jos4: claim of, against military government of Cuba for damages to a tug in a collision with government vessel: 526-529. determination of: 529. 737 Caja de Muertos (island): report on annulment of title to, grante(l by (;eneral fIenrv: 448-451. Calero, Juan B.: report on application of, to annul judgmlents ren(lered by, courts of Culla: 486. denial of application by Secretary of War: 487. Calhoun, John C.: debate with Webster regarding extension of Constitution to Upper California, etc.: 96 et seq. debate with Webster in 1849 regarding extension of (onstitution over newly acquired territory: 140 et seq. doctrine of extension of Constitution over territory promulgated by: 140. contrary views entertained by, while Secretary of War under Monroe: 140. California: conquest of, title acquired by: 166. accomplished 1)y canii)aign of 1846: 166. when complete: 384, 468. customs duties, levy of, on products of: 102, 167. circular of R. J. Walker: 102, 167. exacted by government of civil affairs: 166. instructions of Win. L. Marcy, Secretary of War, to Colonel Mason: 102. military government, establishment and origin of: 12. lhow instituted: 13. continued existence of: 16, 20. annoutncemlent of Colonel Mason: 101. navigation laws, enforcement of: 103, 167. post routes, act of 1848 establishing: 101. tariff of the United States, enforcement of: 103, 167. end of Mexican rule in: 28, 359, 390, 492. letter from Buchanan to Vorhies regarding post-offices: 102. bound anl( privilegeld by Constitution (.,) proprio rigore: 103. a part of the Union on exchange of ratifications of Mexican treaty: 102, 167. annexed by treaty wvith Mexico. recognition of, by Congress as a part of the Union: 102, 167. act of Congress extending revenue laws over: 167, 169. organization of independent State government: 169, 2 t1. refusal of Congress to recognize Senators and Representatives: 169, 243. message of President Taylor regarding collection of revenues in: 170. validity of grants of pueblo lands: 383, 384. termination of authority of Mexican officials: 384. insurrection against minlitary government: 689-730. relinquishment of, by Mexico, by treaty of 1848: 41. title of United Stat(s perfected by conquest: 41, 81. debate on question of extending Constitution to: 96 et seq. acts of Congress extending boundaries to include: 101. laws relating to treason, etc.: 672. Calvo, Drcit International: cited: 51. Canada: trade of Vermont and Northwest Territory with, under first tariff law: 158. Capitation tax: constitutional provision regarding: 92. Captures on land and water: constitutional provisions regarding: 25, 63, 267, 622. in war, vest primarily in the sovereign: 108. 1394-03 47 738 Captures on land and water-Continued. acquisition of, by conqueror not fully consummated until confirmed by treaty of peace: 108. all enemy's property subject to: 265. (See Confiscation.) at sea, liability to confiscation determined by prize courts: 266. passes title to arms, ammunition, etc.: 266. title to personal property passes with: 266. power of Congress to make rules concerning: 25, 35, 63, 267, 622. Castine, Me.: status of, under British occupation: 61. Catalina, The: claim of Jose Cagigas for damages on account of collision with Government vessel: 526-529. (See Cagigas.) Cattle: fee for slaughter of, in Habana: 195. (See Buena Vista; Duplessis; High sheriff.) Cession: meaning of, as used in treaty of peace with Spain (1898): 46. of territory may be demanded as a condition of peace: 48. territory may be acquired by: 51. assent of sovereign necessary to complete: 151. of territory, participation of House of Representatives in accepting: 151. of Hawaiian Islands: 42. Chase, Salmon P., Ch. J.: description of military government: 12. opinion in Ex parte Milligan: 35. martial law defined: 12, 363. China: demand for Mexican coinage in: 257. importation of Mexican pesos from the Philippines: 257. consular courts in: 57. Chinese: exclusion act, authority to enact: 90. cases: 68. exclusion of, and objectionable persons front the United States: 120. Chinese immigration: prohibition of, into the Philippines: 482. Citizenship of inhabitants of islands acquired by Spain from the Unite(l States: 60. allegiance must not be confounded with: 114. is created by the consent of the sovereignty: 114. originates with the Government: 114. Is based on allegiance: 116. is not necessary resultant of acknowledgment of allegiance: 118. is not price paid for allegiance of men: 118. undet United States Government, not a right inherent to all ien: 119. is conterred by the Government: 119. how citizenship may be acquired in the United States: 119. can not be conferred by President and Senate: 126. right ot Spain to accept renewal of allegiance to it by indiividual inhabitants of territories acquired by United States: 173. independent State may tender, upon any conditions: 175. Koszta's case: 118-119. feudal rule ot 115. 739 Citizenship of inhabitants of islands, etc. —Continued. of inihabitants of the Philippines, Congressional resolution regardling: 247. O(f SpIain, laws regarding: 173, 174. rights guaranteed persons residling in ce(lded islanldS: 474. legal standing of, ill courts of Culla: 476. jurisdiction over estates of (leceased, in Cul)a: 476. (See Expatriation; Allegiance.) Civil code of Spain: lprovisions regar(ling citizenlliil): 1 74. Civil government: in retlel States inimical to tle Union: 18. right of President to form, for conquered territory Iduring the war: 25. may l)e terminated bly Congress: 25. in Cubla, authority of Commander in Chief to participate in:.4. in I'orto Rico, necessity of establishment: 25. in the Philippines, establishment of, a war measure: 229). powers of, exercised b)y military andl civil officials: 231. how adlmninistered(: 232. Civil law and penal law continue ill force in enemies' territory un(der llilitary government, etc.: 14, 198. (continued in force in territory acqllirel y!v lInite(l States in war with Spainl: 110. of Spaini. (See Civil code.) Civil procedure: proavisions of Spanisll c.ode of, regardling wrecks: 5(61. (See Vessels.) Civil rights. (See Rights.) Civil war: to what contests ternl may l)e applield: 212. (See American civil war. ) Claiborne, (overnor W. C.: exercise of legislative and( judicial powers in Louisiana: 30, 43. letter froml Secretary Gallatin to, instructions for taking possession of Louisiana: 159. Claims: of aliens against the Unitedl States can not )be presente(l to Congress: 340. for unliquidated damages against United States must l)e presentedl to State 1)epartment: 339, 409. rule of Congress regar(ling consideration )of: 340, 409. letter of Hamilton Fish regarding: 340. must address Governlllent through diplo-lmatic representatives of tllheir own Gov-ernment: 340, 341. cases in which aliens may maintain suits in United States (Court o)f Claims: 344. which canll l)e a(ljusted ald cmisilere 1' y WaVr )epl)artment: 61;6. (See Herrera, Sobrinos de. ) Cocoanut palmns in the P'hilipp)ines. value, etc.: 608. Cocoanuts: export duty oil, in tilhe Philippines: 218. Code of civil procedure of Spain: provisions regarding wrecks: 56t1. (See Wrecks. ) Code of Commerce of Spain:.provisions regard(ing wrecks: 561. (See Wrecks. ) 740 Code of military justice of Spain: provisions of, regarding desertion, etc.: 563, 564-566. (See Idulla Saez.) Collectors of customs under military government: right of, to administer estates of deceased persons: 478-481. circular of Insular Division, War Department, regarding duties of: 479, 481, 520. Collision of vessels: provisions of Spanish law regarding damages for: 527. (See Cagigas, Jose.) determination of administrative policy of Cuba: 529. Colorado: extension of Constitution to: 90. Comerio, district of: report on application of Ramon Valdez for license to utilize water power of La Plata River: 495-500. (See Valdez, Ram6n.) Commander in Chief of military forces may confer legislative and judicial powers upon military commnanders in time of war: 34. of the Army and Navy, authority -10 p)articipate in civil government of Cuba: 34. (See President; Executive.) Commanders of military districts in rebel States: powers of: 17. powers conferred upon, by reconstruction acts: '14, 234. Commerce: in the Philippinesright of Government to regulate, report on: 210-254. authorized with certain parts of: 222. unlawful: 222. ports open to foreign: 232. right of United States to regulate, with: 241-251. prohibition to trade with: 303, 322. treaties of, not binding upon new State formed by separation: 190, 303, 327, 639. with rebel States: 220, 253. authority of President to control and regulate, in hostile territory: 219, 227. illegality of, with public enemies: 221. power of United States Government to permit limited intercourse with enemy in time of war: 222. right to regulate, with territory subject to military occupation: 225, 303, 325. of military occupier to regulate, with districts subject to his occupation: 227. regulation of, an incident of military government: 225, 302, 325, 338. permission of foreign nations to, an act of grace on part of sovereignty: 304, 327. sovereignty of United States not encumbered by Spanish personal contracts regarding: 304. with Sulu Islands. (See Sulu Islands.) treaties, suspended in the presence of war: 331. right of Congress to regulate and control, in time of peace: 332. Birkhimer on regulation of: 225, 303, 325, 338. Commercial blockade. (See Blockade.) Commercial Cable Company: opinion of Attorney-General as to application to land cable in Cuba and Porto Rico- 355, 539. Commercial code of Spain: provisions of, regarding wrecks: 561. 741 Common law: trial by jury is an essential part of: 110. belongs to the Anglo-Saxon race: 110. did not attach to territory acquired by 1 nited( States in war with Spain: 110. can become of force in territory acquired 1by United States only by Congressional action: 110. Commutation of sentences: by courts of Cuba ilnposed up),ll persols serving thle sname in territory sulbject to Spanish sovereignty: 507-510. Concessions in Cuba: Foraker resolution regarding: 357, 0367, 387. opinion of Attorney-(eneral::367. passage of: 367. purpose of, as to minnicipal rigllts in Cuba: 387. effect of: 387. how restrictions created bhy, operate: 388. not to be construed as prohibiting mlunicipality froml exercising ordinary rights of ownership: 543. a voluntary renouncement by United( States of fruits of conquest in Cuba: 544. right of Spaifi to grant, after signing of protocol of August, 1898: 585, 595-603. Confederation: right of States to impose exp)ort andl inlport (uties lln(ler: 2:-7. Confiscation: of enemy's property: 87. report on: 264 et seq. is a sovereign right: 265. how right of, limited and( controlled in time of peace: 265. is a belligerent right in tine of war: 265. all property within enemy's territory is subject to: 265, 266. of private property Illore easily justified in civil wars: 265. d(istinctioll between propIerty on the sea and on land: 266. establishment of prize courts to dleterlnine liability to, of captures at sea: 266. purpose of court procee(lings in: 266. exercise of rights of illlpressmlent, replrisal, etc., (constitute: 266. of property to cornpel peace: 267. Congress has authority to d(eclare will of sovereignty regarding: 267. act of Congress for, of property used for insurrectionary lurpo)oses: 267. of rcl)el property: 267. of private property, right of, (lerived from laws of war: 269. not conferred lby legislation, but mnay be regulated by: 269. to prevent use b)y enemny, is exercise of war p)ower: 269. belonging to an insurgent, is an exercise of municipal power: 269. I'nited States may exercise war powers, etc., while engaged( in suppressing an insurrection: 269. when intended as punishlment for crime, must bte authorized,by legislative branch: 269. not the case when Nwar powers of a nation called into action: 269. in the Philippines, as a punisllment for treason against Federal (overnment of the United States: 270. as a punishment for resisting lawful authority of military governiment: 270. on land, when proper: 279. provisions of Spanish constitutions, etc., regarding: 398. laws of Americani colonies for: 277. 742 Confiscation-Continued. Congress only authority which cal invest courts with jlurisdiction to llear and determine proceedings for: 280. (See Property.) Congress of the United States: course of, regarding military government after civil war: 17. passage of "reconstruction acts: " 17, 364, 363. (See Reconstruction acts.) can not intrude upon authority of President: 22, 35, 279, 368. to determine civil rights and political status of inhabitants of territories ceded by Spain: 24, 46, 175, 243, 246, 247. act of, declaring the existence of war between the Utnited States and Spain: 23, 362. refusal of, to recognize action taken pursuant to executive, etc., adliniistration: 24. refusal of, to recognize governments established in Tennessee, Arkansas, and Louisiana: 24, 244. authority vested in, to establish civil government in Porto Rico: 25. powers of, regarding war, letters of marque, and captures: 25, 35, 63, 267, 622. territory, etc., belonging to United States: 25, 63, 245, 89-622. legislative powers vested in, by Constitution: 25, 70, 71-73, 74. right of, to legislate for Porto Rico: 29. joint resolution for the recognition of the independence, etc.: 31, 361. by reconstruction acts, conferred judicial and legislative powers upon commanders of military districts, etc.: 34. may prescribe manner of asserting sovereignty of United States: 34. indirectly controls course of hostilities: 36, 278, 368. can not interfere with belligerent operations: 36, 278, 368. is vested with the power to extend or contract territorial boundaries of the United States: 37, 41. how opportunity to extend boundaries may be afforded: 38. completion of transfer of the Floridas: 38. rejection of proffer of Santo Domingo: 38. action of, as regards proffer of Texas: 38. in annexing IHawiian Islands: 38. request of to States not to issue grants, etc., for unoccupied territory: 40. passage of act to accept cession of territory by North Carolina: 40. joint resolution annexing Hawiian Islands: 42. authority of, to legislate for territory appertaining to )but beyond tlme boundaries of the United States: 50, 57, 61. may extend boundaries of United States to include island territory: 54. act of, imposing death penalty for offenses, etc., on the high seas, etc.: 54. has extraterritorial powers of legislation: 55. right of, to create extraterritorial legislation: 60. has authority to declare the will of the sovereign: 60. legislative powers of, coextensive with authority of United States: 62. powers of, regarding government, etc., of new territory: 66. to legislate regarding slavery: 74. ordinances for government of Northwest Territory reported to: 75. powers of, over Territories of the United States: 85, 89,107. to legislate for Alaska: 61, 88. sovereignty exercised by, in legislating for States and Territories: 107. in legislating for territory outside of boundaries of United States, is not bound by limitations imposed by Constitution: 120. 743 Congress of the United States-Continued. pow-ers of, to extend Constitution, etc., over newly acquired territory: 140. proceedings in, on blill for paylnent of price of Alaska: 151 et seq. sovereign will of the people to b)e declared by: 151, 245. rights regarding government of territory etc., must tbe 'onferredl by: 169. authorization to President to increase Regular Army: 215. exercise of war powers by: 233. right of, to impose taxes etc.: 92, 237. regulations of export trade by: 238. proceedings in, for impeachment of President Johnson: 24, 244. resolution of, regarding inhabitants of Philippines: 247. right of, to regulate and control tra(le in time of peace::32. powers of, over public property: 67. recognition of California as part of the Union: 102, 167. Connecticut: cession of unoccupied( lands to Fed(eral Government: 1 23. laws relating to treason, etc.: 672. Conqueror: has right to displace preexisting authority: 15, 217, 22'6. powers of, unlimited: 15. by completion of conquest, tbecomes absolute owner of l)rop)erty conqueredl: 108. right of, to levy contributions upon enemy: 217. Conquest: territory mlay t)e ac(lllire(l by: 51, 85, 108. results from invasion: 86. title l1y, how acquiredl and1 mnaintainedl: (86. power to acquire territoryr 1, vested( in Unitedl States: 94, ()08. paymlient of dlelbt enforced b!: 182. is a valid title: 244. boundaries of Union not enlarged bly: 244. the definite approl)riation of territory: 386, 543. rights of, are derived fronl force alone: 582. by term, is uni(erstood( the forcible acquisition of territory, etc.: 582. Consent of the governed (see Allegiance: Expatriation): 114-118. Conspiracy: lquestion of inserting cl(arge of, il ('coIl)laints against Neely anll Rathblone: 545-554. c(an not merge in misdemlleanor: 546. merges in felony: 547. reqluiremlents of United States Revise(l Statutes to Ilake offense a llunishlable one: 548. provisions of Spanlish l)enal co, e regarding, to comlmit treason: 548. Iese m-ajeste: 548. rebellion: 549. sedition: 549. defined in Spanish plellal cod(e: 549. (See Treason. ) Constitution and laws of Unite(l States substituted hlr laws of war und(er military government: 13. of Texas, amendment of, before passage of reconstruction acts: 18. oblligation of United States under, to guarantee every State republican form of government: 22. provisions of, regarding war, letters of mnarque, rules concerning captures: 25, 63, 86, 94, 622. 744 Constitution and laws of United States, etc.-Continued. legislative powers vested by, in Congress: 25. limits authority of President over conquered territory: 25. can have no operation in another country: 50, 57, 58. does not affect territory without United States boundaries: 50. not violated by laws granting extraterritorial rights: 57. established a government for the United States of America: 58, 69. does not establish government for countries beyond limits of United States: 58. guaranties of, apply only to persons within the United States: 58. enumeration of rights in, not to be construed to disparage others: 68. powers not delegated to United States by, reserved to States, etc.: 68. signature of: 76. ratification of: 77. extension of, to Territories of the United States: 84, 140. limitations of, in favor of personal rights: 88. powers and rights created, etc., not inherent to all people: 90. does;ot extend ex propiio 'rigore to United States territory outside State boundaries: 90. extension of to New Mexico: 90. organized territories: 90. extends to all places over which the Government extendsl: 91. war and treaty-making power conferred on Government of Union by: 94. debate between Calhoun and Webster on extension of, to lpper California and New Mexico: 96. not madle for Territories, but for States: 99. can not operate without acts of Congress to enforce it: 99. extension of, to California: 103, 167. vests power to acquire territory in the United States: 94, 108. provisions of, relating to trial by jury apply to Territories: 110. extension of, and laws to Utah: 90, 111. provisions of, regarding trial of crimes: 113. extension of, to the District of Columbia: 113. limitations of, apply to Federal courts only: 114. imposed by, do not bind Congress in legislating for territory outside of boundaries of the United States: 120. declarations of Monroe, Adals, and Jackson that, does not extend (e. lrol)io rigore over newly acquired territory: 140. Senate debate on extension of, over newly acquired territory: 140 et seq. provision of, regarding raising of revenue: 151. treaties: 167. under internal-reveell laws should be as universal in application as tariff laws: 171. provisions of, for direct taxation: 171, 172. regarding taxes andl duties: 91, 2, 237, 239. imposition of export duties: 239. Consular courts: establishment of, by Congress: 56. right of Congress to confer jurisdiction in civil matters upon: 58. constitutionality of Congressional legislation regarding: 58. where maintained by United States: 59. statutory provisions regarding: 59. opinion of Attorney-General Garland: 59. Consuls and vice-consuls: duties of, as to estates left by United States citizens: 479. 745 Contencioso-administrativo proceedings in Cuba: protest of M. F. V'iondi against order regarding: 514-518. order of Cuban military government suspending: 514. review of Spanish procedure: 514 et seq. how instituted: 515. jurisdic.tion of, vested in civil chamber of Habana audiencia upon American occupation: 515. jurisdiction of appeals vested in supreme court of Cuba: 515. order contrary to provisions of treaty of peace with Spain: 516.. provisions of treaty of peace regarding judicial proceedings: 516. revocation of order suspending: 518. Contract: subject to superior right of public t) terminate, etc.: 204. personal, loes not burden sovereignty of ceded territory, etc.: 206 is express or implied: 346. consent of owner essential to creation of: 349. Contract obligations: United States not liable for, of Spain: 180, 182, 18:3, 184. Contributions: right of conqueror to levy, on eneny: 217. Converse v. United States: compensation to officers for extra services: 424. (See Army.) Cook, Mortimer: report oil disposition of effects of, in the hands of tle Philippine military government: 519-523. (See Collectors of customs. ) action of Secretary of War as to effects of: 523. Cooley's Constitutional Law: cited: 35. Corea. (See Korea.) Corporations: can not be created in Porto Rico under laws ill force unller Spanish dominion: 491. are the creatures of a law: 492. how incorporated under Spanish laws: 492. Countess of Buena Vista. (See Buena Vista, Countess of.) Court of Claims of the United States: cases in which aliens may imaintain actions in: 344. Courts: admiralty, can not be estal)lishled by President in conquered territory: 22. established in Mlexico )by American commander agents of military power: 22. must await action of Congress for jurisdiction over newly acluired territory: 30. ordinary, of prior government continue in existence: 30. in Porto Rico can not be authorized by President to pass on rights of the ITnited States: 30. consular, establishment of, by Congress: 56. right of Congress to confer jurisdiction in civil matters upon: 58. wlhere maintained by Unite(l States: 59. statutory provisions regarding: 59. opinion of Attorney-General Garland regarding: 59. created in Territories are not Federal courts: 114. in Cubalegal standing of Spanish subjects before: 476. provisions of treaty of peace regarding judgments rendered by: 486,487,509. 746 Courts-Continued. in Cuba-Continued. jurisdiction of: 580. conmutation of sentences by: 507-510. final character of judgments rendered by under Spanish law: 486, 488. Crimes and offenses committed on the high seas, etc.: 55, 62. constitutional provisions regarding trial of: 113. connected, what are understood by, in Spanish law: 554. Criminal conspiracy: (See Conspiracy.) Criminal jurisdiction of United States courts over felonies comllitted on the high seas: 55, 62. Criminal procedure: difference between, under civil law and under common law: 553. Cross v. Harrison: views of court regarding military government in California: 16. authority of Commander in Chief to levy duties in territory under military government: 218. Cuba: still governed under the law of belligerent right: 33. administration of estates of deceased persons: 478-481. (See Collector of customs.) batteries, stationary, and war material left by Spain, report on suggestel agreement as to disposition of: 566-571. bonds ofdiscussion by Whitelaw Reid on: 187. amount issued by Spain: 'i92. declarations contained in: 192. contention of Spanish Commission regarding: 192. American Commission regarding: 192. cable concessions in. (See French Cable Company, International Ocean Telegraph Company, Cuba Submarine Telegraph Company, United States and Haiti Telegraph Company.) Cagigas, Jose, claim for damages to tug sustained in collision with (Governlient vessel: 526-529. civil government of, authority of Commander in Chief of Army and Navy to participate in, letter from William McKinley to Secretary of War regarding: 217. commutation of sentences by courts of: 507-510. concessions and franchises, Foraker resolution regarding: 357, 367, 387. right of Spain to grant, after signing of protocol in August, 1898: 585, 595-603. (See Foraker resolution. ) contencioso administrative proceedings. protest of M. F. Viondi against order regarding: 514-518. order of military government suspending: 514. review of Spanish procedure: 514 et seq. how instituted: 515. jurisdiction of, vested in audiencia of Habana: 515. appeals vested in supreme court of Cuba: 515. order contrary to provisions of treaty of peace with Spain: 516. provisions of treaty of peace regarding judicial proceedings: 516. revocation of order suspending: 518. courts inlegal standing of Spanish subjects in: 476. provisions of treaty of peace regarding judgments rendered by: 486, 487, 509. jurisdiction of: 580. commutation of sentences by: 507-510. 747 Cuba-Contillned. Cuban and Pan-Ailerican Express Company, report on contract with United Railways of Habana, etc.: 511-513. annulment of, by General Wood: 511. oljections urged against, by Cuban authorities: 511. provisions of contract: 512. validity sustained by Cuban government: 513. exercise of sovereign rights in, by Spain after protocol of August, 1898: 584. extradition of fugitives from justice who have taken refuge in, under military government: 523-526. how to be effected: 525, 526. fortifications, report on suggested agreement with Spain as to disposition of: 566-571. franchises, report on grant of, by Spanish officials after the signing of the protocol of August 12, 1898: 595-603. (See Foraker resolution. ) governor-general of, report on paylment of salary out of Cuban revenues: 422 -432. (See Wood, Maj. Gen. Leonard.) highways and streetsreport on right of railways to cross, etc.: 374-391. provisions of general law of public works and other laws: 379-380. owned by municipalities: 378. rights of municipalities to alienate rights to: 378. regulate and control use of: 378. land dedicated to public use as, is public property: 382. imprisonment, provisional, to ble counted as part of term of sentence: 508. independence of the people of, etc., joint resolution for the recognition of: 31, 361. invasion of, purpose of: 199. judgments, lrovisions of treaty of peace regarding, renderedl hy courts of: 487, 509. Matadero River, concession for canalization of, report on: 571 et seq. apl)lication for concession by PelAiez de Amigo and GOnez d(e Aranjo: 572. authority to construct canal granted: 572. purchase of concession b)y lIabana Canal Comipany: 572. report of Brigadier-General Ludlow on: 572. Habana Canal Company entitled to exercise rights created 1)y concession: 578. concession prima facie lawful: 577. construction of, recognition: 578. courts of Cuba not bound by: 578. exercise of rights claimed subject to control, etc., of provisional government: 578. approval of views contained in report, I)y Secretary of War: 578, 594. opinion of Jose R. Villal6n as to validity of concessions: 588. opinion of aldministrative council against validity of concession: 590. recommendations as to proper action: 593. instructions of Secretary of War to General Wood: 594, 595. military government ineffect of treaty of peace upon: 19 et seq. substitute for previous sovereignty: 31, 538. derives its powers from laws of war: 34. identical with military operations of belligerent: 35. right of, to expropriate private property; 360. exercise of judicial powers by: 580. 748 Cuba-Continued. military governor of(See Governor General.) mining claims and appurtenant privileges, report on: 351-373. order of military government continuing granting of: 352. laws in force under Spanish dominion continued: '356. ownership of mineral, under Spanish law': 353. Spanish laws in force in Cuba: 357: powers conferred upon provincial governor: 358. provisions for exercise of right of eminent dolnain: 359. opinion of Attorney-General: 370 et seq. municipalitiesright of, to grant permission to railroads to cross streets, report on: 374-391. right of, to acquire property: 374-382. real property acquired by: 374. how affairs of, conducted: 374. action of municipal officials subject to apl)roval of general administration: 374. purpose of surveillance: 374. Spanish laws relating to, continued in force under military government: 374. laws of Spain substantially the same for Porto Rico: 375. policy recommended by President for Porto Rico adopted and pursued in Cuba: 375. progress made toward independent administration of their own affairs: 375. petition for increased railway facilities: 375. how property belonging to, may be divided: 377. streets and highways owned by: 378. how property of, divided by Spanish law: 378. right of, to alienate rights to streets: 378. power of, to regulate and control use of streets under Spanish law: 378. authority of, to grant permits for use of streets: 378. provisions of municipal laws in force in, under Spanish sovereignty: 379. general law of public works in force in: 380. regulations for execution of: 380. railroad law for: 380. regulations for the execution of: 380. establishment of towns within limits of: 381. land dedicated to public use as streets is public property::382. can not alienate title to land which passed to the United States: 333. purpose of Foraker amendment as to municipal rights: 387. effect of: 387. possess same rights of property as under Spanish sovereignty: -38S, 38.9. may exercise ordinary rights of ownership over their property: 389. authority of military government over affairs of: 390. how property owned by, may be encumbered or conveyed::-391. extent of powers of: 470. rights belonging to peaceful possession of property not impaired: 543. obligations of Spain, refusal of United States to assume: 208. office holders, Spanish, inauthority of, ceased with withdrawal of Spanish sovereignty: 197. right to office not protected by treaty of peace: 206. provisions of Recopilacion de Indias relating to public office: 200. public offices are not property: 203. power of disposal of retained by Crown of Spain: 203. 749 Cuba-Continued. office holders, Spanish, in-Continued. public offices are not property-Continued. rights of administration held by purchaser: 203. inculmbency subject to the Royal will: 203. termination of incnumbency not an exercise of the right of eminent domain: 204. (See High Sheriff.) pardon, exercise of the power to: 507. orders issue(d by military government: 507. penal code, provisions of, violated by Neely and Rathbone: 550. provisions of, relating to treason: 548. lese Inajeste: 548. rebellion: 549. sedition: 549. (See Neely; Rathbone.) postal code, provisions of, violated by Neely and Rathbone: 550. property, lpublicUnited States has title as trustee: 353. title to, has not passed to sovereignty inherent to people of: 454. right of Conminander in Chief to dispose of: 367. doctrine of postliminy not involved: 367. title to, was vested in the Crown of Spain: 574, 585. relinquishment of, by Spain: 574, 585. (See Streets; Highways; Concessions.) property, prite, right of ilitary government to expropriate: 360. property rights, provisions of treaty of peace regarding: 382. protocol of August 12, 1898, purpose of: 584. did not have effect of transferring Spanish sovereignty: 585. provinces, rights belonging to the peaceful possession of property not impaired: 543. railroadsright of, to cross highways, etc., report on: 274-391. need of: 376. reason for not extending: 376. requisites to construct: 376. can not employ right of eminent domain: 377. how right of way over municipal property secured: 377. provisions of municipal law affecting: 379. general law of public works: 380. regulations for execution of: 380. law of: 380. regulations for its execution: 380. of general service, how authorized under Spanish sovereignty: 381. report on draft of proposed order of military government authorizing organization of companies, etc.: 391. provisions of Spanish code of commerce: 392. works of public utility; 396. revenues offunds created by, not the property of the United States: 424. are not military contributions, etc.: 424. sentencescommutation of, by courts imposed upon persons serving in Spanish territory: 507-510. 750 Cuba —Continued. sentences-Continued. provisional imprisonment to be counted as part of term: 508. retroactive effect of this provision: 508. sewers and pavements in Habana, opinion of Attorney-G(eneral regarding contract to Dady & Co.: 359, 389, 408, 536. claim of Primitive Gutierrez regarding market-house contract at Sancti Spiritus. (See Gutierrez, Primitivo.) monopolies created under Spanish sovereignty: 539. sovereignty in, remains dormant: 31. of, in the people of the island: 34, 202. relinquishment of, over and title to, by Spain: 46. Spanish subjects inrights guaranteed to: 474. legal standing of, in courts of: 476. jurisdiction over estates of deceased, in: 476. streets and highwaysreport on right of railways to cross, etc.: 374-391. provisions of general law of public works and other laws: 379-380. owned by municipalities: 378. power of municipalities to alienate rights to: 378. regulate and control use of: 378. land dedicated to public use as, is public property: 382. territory of, how subdivided: 374. trade-marksreport on: 305-315. Spanish laws and orders regarding: 307. protection afforded by Spain to: 308. mode of registration: 312. (See Trade-marks.) troops, encampment of, inclaims against United States by reason of: 338-350. determination of unliquidated damages requires exercise of judicial powers: 339. United States, rights of, in, are based on treaty of 1898: 599. question as to whether Spanish grants were in fraud upon: 599. vessels in coastal waters of, ownership of, sunk by United States naval forces: Navy Departm-ent has no authority to preserve, etc.: 556. duty of Secretary of War to remove sunken vessels: 556. request of military governor for decision as to disposition: 556. proceedings had in the case of the Alfonso XII: 556 et seq. action on application for purchase of: 556. correspondence between Secretaries of War and Treasury: 557. letter from Colonel Edwards to military governor: 557. application of A. Lotinga to State Department for purchase of: 558. advisability of dealing with, as nuisances: 561. instructions to military governor: 562. provisions of Spanish codes of commerce alndl civil procedure regarding wrecks: 561. war material and batteries left by Spain, relort on suggested agreement as to disposition of: 566-571. Cuba Submarine Telegraph Company: cable operated by: 282. concession granted by Spain: 282, 288, 297. landing points of: 282. 751 Cuba Submarine Telegraph Company-Continued. act of Cuban government complained against: 283. action requested: 283. provisions of treaty of Paris invoked in support of complaint: 283. has the right to object to use of telegraph lines in Cuba by French Cab!le Company: 291. discussion of Spanish concession to: 297. exclusive privilege granted: 297. rights conveyed are property rights: 297. Cuban and Pan-American Express Company: report on contract with United Railways of tlhe llalana and Regla warehouses: 511-513. annulment of, by General Wood: 511. objections urged against, by Cuban authorities: 511. provisions of contract: 512. validity sustained by Cuban governnent:.513. Cullom, Senator from Illinois: debate in House on Alaska treatv: 156. Currency of the United States: act of Philippine Commission to prevent liscriminiation against: 256. Cushing, Caleb, Attorney-General: views on right of expatriation: 175. views on extra allowances to army officers: 429. (See Attorney General.) Customs: passage of original law of: 158. relations of territory beyond United States to tariff laws: 158. laws, extension of, over newly acquired territory by act of Congress: 158-173. Northwest territory: 158. Alaska: 170. California: 102, 166, 169. Louisiana: 159. Vermont: 158. Tennessee: 158. North Carolina: 158. Rhode Island: 158. Florida: 162, 165. Texas: 165. New Mexico: 166;. Oregon: 168. duties exacted l! PIhlilippine government enforced l)y exercise of belligerent right: 211. dluties, order imposing, on imports etc., in the Philippines' 217. right to exact payment of, by exercise of belligerent right: 227. collecte(l in the Philippines: 232. I). Dady & Co.: opinion of Attornley-(Get!leral regarding conclessioli to: 359,389, 408, 536, 631. Dagupan: concession for railway from Manila to: 179. (See Manila Railway Company.) Dakota: extension of Constitution to: 90. Damages: determination of unliquidatel, requires exercise of judicial powers: 339. 752 Damages-Continued. claimed by aliens must be presented to State Departlnent: 340. what is meant by: 342. United States not responsible for unauthorized acts of individual soldiers: 343. claim for quantum meruit to be distinguished from claim for unliquidated: 348. unliquidated, War Department has no authority to settle claims for: 409. Dana: agent for United States before Halifax Commission, interpretation of treaty with Great Britain of 1818: 330. Daniel v. Hutcheson: powers of officer in colmmand in Texas under reconstruction acts: 33. Dawson, J.: on powers of Congress in legislating for Alaska: 88. Day, William R.: correspondence with E. Montero Rios regarding provisions of treaty of peace with Spain (1898): 181. Debt: liability of general government for, does not pass with ceded territory: 182, 183. instances in which conquering State has taken over part of: 182. payment of, enforced by conquest: 182. general, of a State is a personal obligation: 183. discussion by Whitelaw Reid regarding general State: 187. (See Liabilities; Obligations.) which (lo not become a debt of the new sovereignty: 189. which are a charge upon the conscience of the sovereign: 190. State formed by separation not liable for general debt of parent State: 190. non-liability of United States for, of Texas: 190. in Porto Rico, payment of, contracted in Mexican money: 648-650. proposed judicial order regarding: 648. Declaration of Independence: fundamental idea of: 115. derivation of powers fronm the consent of the governed: 116. Declaration of war: between the United States and Spain: 32. Delaware: laws relating to treason, etc.: 672. Derelicts: ownership of vessels sunk in Cuban coastal waters by United States naval forces, etc.: 555-562. provisions of United States Revised Statutes: 555. (See Vessels.) Desertion from military service il Spain: provisions of Spanish Code of Military Justice regarding, and other offenses: 563-566. (See Idulla Saez.) Dewey, Admiral George: order prohibiting trade with the Philippines: 303, 322. Diaz Herrera, Antonio: report on application of, to annul a judicial decree: 487-489. purpose of application: 489. denial of application: 489. Discovery: territory may be acquired by: 51. Discrimination against money of the United States: act of Philippine Commission to prevent: 255. 753 District of Columbia: extension1 of Constitutionl etc., to: 90, 113. righit to impose direct, tax on: 91. trial b)y jury ini: 112. Division of Customs and Insular Affairs, WNar D~epartmient: circuilar regarding (luties of collectors of cuistomis undler military gov-ernmnent: 479, 481, 520. Dolz, Eduardo, secretary of public works anil coitmunnicationis in Cub~a: authtority to Western Railway of Habaniia to extenid linie: 631. (See Western Railway of Habana.) Domain, public. (See Public property.) Domicile: (lefine(1: 118. how acquired: 118. (See Allegiance; Citizenship; Aliens.) Dooley v. United States: legality of duties upon iuports.- fromi ceded islands: 218, 226, 241. Doria, Miguel Porrata. (See Porrata, Doria, Miguel.) Douglas, Stephen A.: annlounces doctrine of squatter sovereignty: 105. Dred Scott case: oj)inioI o)f Chiief Juistice Tanev: 82. only case appealed fromt Suiprem-e Court to soeeinpeop~le: 104. Dubuque, Jacob: report o)n administ~,.-ration)i of estate of, 1wy Unitedl States iiilitary authorities in Cub~a: 478-481. estate taken lpossessioni of by- collector of custouins at Cienfuegos: 478. (See Collector of customs.) Duplessis, Dr. Gustavo Gallet: r'elort oni petition for relief and( indemnity: 1,94-2091. interest of, ini Ilab~ana slaughlterhiouse: 19-5. refus~al int Uniited States autho(-rities to allow, to enij( emiolumienits ap~pertaining to o —ffice o)f high-d,sheriff of llabana: 195. dlenmandt ii-ade byN: 196. conttentioln of, regardling office of hiighi sheriff of llab~amna: 196. (See High sheriff; Office, public.) Duties o)f maiilitary gove(rniunents inaintainel 1wy Uniite(l1 States ini islands, ceded by Spaini: report oni: 1. inIlposts ani(l excises, uniformiity of, thiroughlouit thle Un~itedI States: 91, 237. l)r-ovisionis regardling impositionl of, ini Californiia: 102-103. collection of inllort andl export, ini Louisiania: 159. (extension of imnlort and tonnage, of the United States to Louisiana: 160. ctoisexactedl by P~hilippine gov-erniment enforced by exercise o ~lieet right: 21 1. on1 imports,and exports, authiority of States to impose, undler Confederation: 237. piower o)f Conigres:s to iniiiose: 91, 92, 237. Dyewoods in the Philippines: nunll~er knioNn: 608. E. Eastern Extension Telegraph Company: claim of, for paym-ent. of subsidy by the Unrited States: 529-531. (See Manila Railway Company.) 139f-03 ~48 754 Edwards, Clarence R.: Chief of Insular Division, War Department: 489. letter to military governor of Cuba regarding disposition of tile wreck of the Alfonso XII: 557. (See Vessels. ) Electrozone: contract with Woolf et al. regarding manufacture and use of, for public purposes in Habana, Cuba: 451-454. how made: 452. Elk v. Wilkins: citizenship in the United States: 119. Elliott, of Vermont: debate in House on Louisiana Purchase treaty: 129. Embargo laws: enactment of: 238. Eminent domain: right of, is a sovereign one: 359. (See Expropriation; Territory; Acquisition of territory.) Emoluments: of privileges appertaining to slaughterhouse in Habana: 195. (See Buena Vista; Duplessis; High sheriff.) Endleman v. United States: powers of Congress in legislating for Alaska: 88. England. (See Great Britain.) Entry into the United States: not possessed by inhabitants of islands acquiredl by the United States: 120. right of, appurtenant to citizenship: 120. Estates of deceased persons: administration of, )by collectors of customiis under military government: 478-481. (See Collectors of customs.) Eustis, of Massachusetts, Representative: debate in House on Louisiana: 134. Evacuation, commission for the, of Cuba: correspondence regarding concessions for tramnways, etc.: 636 et seq. Excises, (duties, and imposts: uniformity of, throughout the United States: 91, 237. power of Congress to impose: 91, 92, 237. Exclusion of Chinese and objectionable persons: from United States: 120. Executive: can not intrude upon authority of Congress: 22, 35, 279, 368. establish courts in conquered territory, etc.: 22. may institute temporary government (luring war: 23, 25. proclamation of, appointing provisional government for Texas: 23. can not make treaty of peace without concurrence of Senate: 25. authority of, over conquered territory: 25. to participate in civil government of Cuba: 34. duty of, to maintain sovereignty in islands ceded by Spain: 48. and Senate can not incorporate foreign territory into United States: 122, 126. confer citizenship: 126. authorized by Congress to increase Regular Army: 215. authority of, to enforce tariff in the Philippines: 218. regulate and control trade with hostile territory: 219, 227. Executive power: attempts of, to anticipate action of Congress in determination of relations, etc.: 24. 755 Expansion: statutes possess no innate power of: 80. -iews of Jefferson on policy of United States as to: 122. Expatriation, right of: is a natural and( inherent one: 117, 175. opinion of Attornevr-(;eneral Cushing onil: 175. existence of right of, establishes right of sovereign to accept proffer of allegiance: 175. righlt of, necessary to change allegiance bty naturalization: 117. (arly American doctrine of: 117. ac(t of Congress, 1868: 175. Exportation: of Mexican pesos fromn Ilhililpines to (hina: 257. Export duties: c,1llection of, in Louisiana: 159. right of Philippine governineiLt to inmpose, report ol: 210-2-54. in the Philippines: 218-225. amnount collected in the Philippines: 232. right of Philippine governmlent to inmpose, if territory not hostile: 237-241. right of States to impose un(ler Confederation: 237. trade, regulations b)y Congress of: 238. meaning of export as used in Constitution: 239. c'onstitutional provision prohibitiing imposition of: 239. on Mexican dollars in the Philippines: 257. (See Customs.) Ex proprio vigore: extension of Constitution, over new territory: 121 et seq. (c,- ntroversy between Andrew Jac:kson and Judge Fromentin regarding (loctrine of: 137. declarations of 'Monroe, Jackson, ian(l (ladans that Constitution, etc., (lo not extend, over newly acquired territory: 140. (lebate in Senate lbetween Calhoun and AVebster on dloctrine of: 140 et seq. Expropriation: Unite(l States may exercise power of: 360. an inherent power of the United States: 360. riglht of, of private property by military governor of Cuba: 360. forcible, for works of )public utility under Spanish law: 395. Extradition of fugitives froim justice: \-ho have taken refuge in Cuba under military governmllnlt: 523-526. how to be effected: 525, 526). Extraterritorial: powers of legislation had by Congress: 55. meaning of: 55. not confined to the seas: 5.o. rights, laws granting, (lo not \violate Constitution: 57. Extraterritorium: meaning of: 55. F. Federal authorities: right of, to blockade ports of rebellious States: 211. Federal Government of the United States: derivation of powers: 29. questions involving relations of, to territory, etc., to be d(eterminedl by political branch: 248. 7 5 (0 Federalist, The: statemnent containedt in, regardlilg conist~itutional 1rovisiou as, to raising of revenue: 151. Fee: for slaughlter of cattle iii 1Habaiia: 1.95. (See Buena Vista; Duplessis; High sheriff.) Felonies coln-lnit-tedl on the high seas: p~ower of Congress to punish: 62. Feudal system: theory of allegiance under: 115. (See Allegiance.) Fire apparatus: claimis of Messrs. 'Meervweather & 'S'ons on account of refusal of city of Manila to l)ern~iit further execution of allegedl contract for sup)j)lving, rel)ort onl: 407. Fish, Hamilton: letter regarding claimts of alienis: 340. Fishery dispute: betweeun Gireat B~ritaini and Uniitedl States: 329. Fleming et al. v. Page: extension of boundaries of the United States: 48, 251. effect of conquest of Mexico by the United States: 1291, 244. customs duties in Florida: 163. regulation of trade wvith Taninpico: 45, 225, 303, 0325. Florida: exercise of legislative, and judlicial I)owvers 1 y (Genueral Jackson in East and West: 30. transfer of, coiipjleted: 38. p~rovisionis of treaty with Sp~ain (1819) contfinuuing title of Unite(l States to: 41, 83, 94, 104, 1.62. discussion of condition of, inl 1828: 93 (t seq. (late of ces~ion of: 94. p~assage of acts establishing Territorial gover ieient. inl: 95. custouiis laws of L~nite(1 States enforced againist iliii)orts fromj: 104. governmiient, of, sameti as that of Louisiana: 137. amlendmii-ents to bill l)rovidhig for governmient of, deb~ate onl: 137, 1-38. al)ipointmcneit of Anidrewv Jackson as governor of: 138. jww~ers vested in Auudrew Jackson as governor: 138. seizures of Sp~anish officers by AXndrewv Jackson: 1 39. laws extendlcd to: 1 39. advantages grantedl to P)ensacola and St. Augusitine by treaty with Sp~ain: 162. extensioni of Uniited States revenue laws to: 162, 165. case of the ''Olive Branch:' 163, 164. inihabitanits of, declaredl in a state of insurrection: 25.3. vallidity of Sp~anish grant of land: 577. laws relating to treasoni, etc.: 673. Florida case. (See American Insurance Co. v. Canter.) Foraker, Senator J. B.: letter transmiitting, comparison between Unitedl States laws onl treasoni, etc., anid act of Philppine Conimission: 655. Foraker resolution: lnrovisions of, regarding franchises, etc., iii (nba: 3"57, 367, 387. opinion of Attornev-General: 367. p~assage of: 267. lairpose of, as to luuniicij)al righjts~ ini Cnlba: 387. 757 Foraker resolution-( ontinlued. effect of: 387. how restrictions created by, operate: 388. nOt to be construed as I)rohibiting municipality to exercise ordinary rigllts of ownerslipl: 543. a voluntarv renouncement )y lUnlted States of fruits of (on'(quest in Cuba: 544. Foreigners. (See Aliens; Allegiance; Citizenship.) Forests: in the Philippines: 233. )rovisions of the Spooner amendllent: 233, 240, 604. construction to be given to, report on): 604 et seq. extent of: 6307. imeans of commlnunication: 6(08. surveys: 609. formerly belonged to the Spanish Crown: 610. belonging to the United States are part of the propertly of thle lUnited States: 612. right to dispose of, vested in Congress: i61i2. Fortifications: in Cuba and( Porto Rico, reI)ort o() suggested agreement as to lispositionl of: 566 -571. failure of evacuation colnmmissions to agree: 567. in the Philippines and (uain, agreement as to: 567. Foster et al. v. Neilson: effect of action by political 1branch regardling territory, (leterilnination of national boundaries: 47, 249. Fourteen Diamond Rings case: constitutionality o(f duties upoIn im)ports into th(e UIuited( States from thle 'Philippines: 241. France: treaty with United States for sale otf Louisiana: 41, 77, 83. how made effective: 43. provisions of: 41, 77, 83. assailed as an act of imperialism: 122. formulation, ap)proval, and ratification of: 159. provisions of, regarding inhabitants of ce(le(l territory: 243. status of ceded territory to Federal (Gov(ernnent: 243. trade: 332. right (of inhabitants of Alsace-Lorraine to retain allegiance to: 475. (See Louisiana.) Franchises: in Cubaprovisions of Foraker resolution: 357, 367, 387. opinion of Attorney-(eneral on'::367. passage (f: 267. purpose of, as to muniicip)al righlts in Cuba: 387. effect of: 387. how restrictions create(1 by, operate: 388. construction of: 543. a voluntary renouncenent by United States of fruits of conquest in Culba, 544. rel)ort on grant of, by Spanish officials after signing of protocol (of August 1898: 595-603. (See Matadero River.) 758 Franchises-Continued. in Porto Ricoorder of President McKinley prohibiting granting of: 385, 440, 464. report on granting of, by municipalities: 463-471. in the Philippinesgrant of: 233. provisions of Spooner amendinent: 233, 240, 604. construction to be given, report on: 604 et seq. approval of views contained in: 615. (See Timber; Public lands; Forests.) meaning of: 440, 612. how granted by municipalities under Spanish law: 470, 471. French Cable Company: cable operated by: 282. rights of, while Cuba under Spanish sovereignty: 283. provisions of Spanish concession to: 285. demland of British consul at Habana to prevent landing of cable: 285. right of, to engage in traffic with points beyond Haiti: 286. use of Spanish Government telegraph lines in Cuba by: 289-291. rights of, under Spanish concession: 293. circular of military government of Cuba regarding acceptance of messages at (Government telegraph offices for transmission by: 202. Fromentin, Judge: controversy with Andrew Jackson regarding d(octrine of ex proprio rigore: 137 et seq. report of Andrew Jackson on action of: 139. issue of writ of 7habeas corpus in Sousa case: 139. appeal of controversy with Andrew Jackson to Washington: 139. letter of, to Secretary Adams: 139. Fugitives from justice: extradition of, who have taken refuge ill Cuba under military government: 523-526. how to be effected: 525, 526. Functions, powers, and duties of military governments maintained by United States in islands ceded by Spain, etc.: report on: 11. (See Military government; Cuba; Porto Rico; Philippine Islands.) Funds: of the United States subject to War Department orders not available for payment of claims based upon obligations of Spanish Government: 177. seizure of insurgent, by United States authorities in the Philippines: 261. seizure of, found in Spanish treasuries in Manila by United States military forces: 621-625. seized as lawful prize of war: 621. are the property of the United States: 622. recommendations: 624. approved by Acting Secretary of War: 624-625. (See Revenues.) (7. Gadsden purchase: acquisition of territory known as, by United States by treaty: 42. Gage, L. J.: letter to Secretary of War regarding disposition of the Alfonso XII: 557. (See Vessels.) 759 Gallatin, Secretary of the Treasury: report on the finances of Louisiana: 159, 161. letter of instructions for taking possession of Louisiana to W\. C. Claiborne: 159. order to, collector of New Orleans regarding taxes, etc.: 159. circular regarding import and tonnage duties: 160. Garcia v. Lee: deterlllination of bounlaries a political lquestion: 250. Gaskill, Chas. B., et al.: in re revocable license to (onstrllct railway in Pon(ce, etc.: 650-655. Georgia: transfer of unoccupiedl territory to General G(overlnmlent: 40, 123. inhalitants of, declared in a state of insurrection: 253. laws- relating to treason, etc.: 673. German ambassador at Washington: letter to Secretary of State regarding restriction (of trad(e with the Sulu Islands(: 317, 318. Germany: recognition of soNvereignty of Spain over Sulu Islandsl: '32;. grant of right to trade with Sulu Islands, etc.: 326. Gibson v-. Choteau: acquisition and government of new territory 1y tle United States: 67. Gomez de Aranjo, Manuel: application of, for concession to canalize Ialtadlero, River, etc. (See Matadero River. ) Government: maintained by1 United States in ced(le islandls, institution of: 11. hostile, functions of, cease under martial law: 14. civil. (See Civil government. ) military. (See Military government.) republican form of, guaranteed every State of the Union: 22. temporary, may })e instituted lbyr resident durinl war: 23, 25. State, formation of, in Louisiana, Arkansas, andt Tennessee: 24. forlmedl l)y President for conquered territory may be terminated by Congress: 25. of the United States. (See United States.) power to acquire territory: 94. powers of, rest upon allegiance of pIeople: 114. rights relating to, of territory, to be conferred by Congress: 169. provisional, establishment of, in New- Mlexico: 22, 218. (See Cuba; Porto Rico; Philippine Islands.) Governor-general of Cuba: salary of, and payment out of Cuban revenues: 422-432. dluties discharged b)y: 422. conduct of affairs of civil government y arnnmy officer is tolerated, not required: 422. extra services: 422. Converse r. United States, case of: 424. (See Army officers. ) Grants: validity of, made by previous sovereign in territory acquired by the United States: 575. (See Franchises; Concessions. ) Grapeshot, case of the: holding of court regarding authority of President to establish provisional courts in Louisiana: 21. 760 Great Britain: treaty with, 1794, first treaty concluded lby United States: 3). commercial convention with, of 1815: 39. grant of right to trade with Sulu Islanls: 326. rights of English subjects ill American colonies: 116. interpretation bv Dana of treaty of 1818 with the United States: '330. fishery dispute with the United States: 329. Gregg, Representative: debate on Louisiana in House: 132. Griggs, John W., United States Attorney-General: letter to Secretary of War regarding laws continued in force on chlange of sovereignty: 28, 29, 188, 200. opinion of, on application to construct a wharf at Ponce, P. R.: 353. on mining claims in Cuba, etc.: 371-373. on concession to Dady & Co.: 359, 389, 408, 536, 573, 631. Griswold, Frank H., et al.: report on application of, for articles of incorporation undler laws of Porto Rico: 490-495. proposed articles of incorporation: 490-491. privileges sought to be secured by: 491. denial of application: 495. (See Corporations. ) Griswold, G.: debate in House on Louisiana purchase treaty: 38, 124, 125. Guam: capture of capital of, sufficient basis of good title for United States: 45. cession of, by Spain: 46. war material left by Spanish forces; agreement as to disposition of: 567. Guano Islands: congressional legislation in respect of: 50. held to be constitutional and valid: 50. list of: 52. criminal offenses in: 51. Guarantee: treaties of, not binding upon new State fornmed by separation: 190, 303, 327, 639. (See Manila Railway Company. ) of Spanish Government in concession to Manila Railway (Company, not a lien upon revenues of Philippines: 193. Gum trees: in the Philippines: 60,8. Gutierrez, Primitivo: rights under contract for market house at Sancti Spiritus, Cuba: 534-541. indebtedness of municipality of Sancti Spfritus to: 534. terms of contract to erect market house: 534. refusal of municipal authorities to carry out terlms of tcntract: 535. claim of, for damages: 535. sustained by Spanish minister at Washington: 536. order suspending contract: 536. refusal of authorities of Sancti Spfritus to assist, to derive benefits claimeld under contract: 536. right of authorities to refuse compliance with contrarct: 536. reason for refusal: 536. rescission of order of suspension: 537. order closing courts of Cuba to suits against mulnicipalities: 537. 761 Gutierrez, Primitivo-Continued. provisions of contract void from inception: 539. proposal to convey market house to municipality: 540. determination of Secretary of War: 541. Gutta-percha trees: in the Philippines: 608. H. Hale, Representative froml New Hanipshire: debate in hIouse on California: 143,144. Hall, international law: quoted on State debts: 182,183,184. statement regarding treaties of alliance, etc.: 190, 303, 327, 639. succession of Mexico to territorial rights of Spain: 304, 327. Halleck: quoted: 20, 25, 386, 496, 582. obligations of treaties: 304, 327, 639. Hamilton v. Dillin: regulation of trade with hostile territory: 222, 223. Harbor works of Ponce, P. R.: application of board of, to United States Government asking assistance in collecting claim against Spain, report on: 484, 485. creation of board: 484. approval by Secretary of War of views set forth in report: 485. Hare's American Constitutional Law: cited: 36. Habana: high sheriff of: 194 et seq. (See High sheriff.) sewers and pavements in: opinion of Attorney-General on contract to J)ady & Co.: 359, 389, 408, 536, 631. right of municipality of, to exercise rights which by law belong to the peaceful possession of property: 541-545. (See Municipalities.) concession for the canalization of tile Matadero River, report on: 571. (See Matadero River.) Western Railway of: report on application of to exercise certain alleged rights: 630-646. (See Western Railway of Habana.) Habana Canal Company: purchase of concession for canalization of Matadero River: 572. (See Matadero River.) entitled to exercise rights created l)y concession: 578. Hawaiian Islands: annexation of: 38, 42. troops, encampment of in; report on clains against Inlitel States bly reason of: 3: 38-3-50. determination of unliquidated damages requires exercise of judicial powers: 339. public property in can be disposed of only Congress: 353. Henry, Brig. Gen. Guy V.: report on annulment of title granted by, to Caja de Muertos Island, etc.: 448-451. Herrera, Antonio Diaz. (See Diaz Herrera.) Herrera, Sobrinos de: report on claim of, for payment of damages on account of seizure of steamer in Santiago: 615-619. 762 Herrera Sobrinos de-Continued. detention of the San Juan in Santiago by blockade: 615. seizure of by United States authorities: 615. release of: 616. claims which can be adjusted and paild by War Department: 616: seizure of, justified as a legitimate exercise of belligerent right: 617. remedy open to claimant: 617. contention of claimants as to seizure: 618. War Department without jurisdiction to consider: 619. Hesse-Cassel: elector of, collection of debts due, by Napoleon: 262. High seas: act of Congress providing punishment for offenses, etc., committed on: 55. powers conferred by Constitution on Congress to define offenses, etc., committed on: 62. High sheriff of Habana: purchase of office of, at public auction: 194. office declared to be perpetual, etc.: 194, 203. duties of: 195. refusal of United States authorities to allow Countess of Buena Vista, etc., to enjoy emoluments appertaining to office of high sheriff: 195. office of, is political: 200, 201. how created: 200. provisions of the Recopilaci6n de Indias regarding public offices: 200. authority of, to serve court writs: 201. became functus officio upon establishment of military occ(upation: 201. public offices are not property: 203. power of disposal of, retained by the Crown of Spain: 203. right of administration held by purchaser: 203. incumbency subject to the royal will: 203. termination of incumbency not an exercise of the right of eimtinent (domain: 204. a national and municipal office: 208. right to office not protected by treaty of peace: 206. incumbent not entitled to indemnity: determination of Secretary of War; 209. (See Duplessis: Buena Vista; Office, public.) Highways in Cuba: report on right of municipalities in Cuba to grant permission to railroad companies to cross: 374-391. when owned by municipalities: 378. right of municipalities to alienate rights to: 378. regulate and control use of: 378. grant permits for use of: 378. provisions of general law of public works: 379. regulations for its execution: 380. law of railroads: 380. regulations for execution of: 380. land dedicated to public use as, is public property: 382. (See Streets.) Hill, David J., Assistant Secretary of State: transmitsto Secretary of WarSpanish royal decree relating to citizenship, etc.: 173. Holland, Representative: debate in House on Louisiana: 135. Holleben. (See German ambassador.) 763 Hongkong and Shanghai Banking Corporation: report on objections mnade i)y, to act of Philippine C(,llllnission to prevent discrimiination. against lonelly: 255-260. re(tluest,f, for lerlllission to illllport Mexican silver (dollars freeA of duty': '56. exportation of Mexican pesos to China: 257. Hostilities: course of, can not ]be controllel )by Congress: 36. House of Representatives: action of, on c(ommllercial convention of IS1 with (;reat Britain: 39. on treaty witll (reat IBritain of 1794: prerogative of, re-ardilg sovereign will of thie lpeopqle: 151, 152. particilpation of, regarding cession of territory: 151. bills for raising revenue to originate in: 151. Idaho: extension of Constitution to,: 90. Idulla Saez, Eulogio: replort onl request of imilitary government of Cluba for release of: 562-566. trial anld conviction of, b)y Si)anish court-lllartial: 563. 1,rovisi,(lns of treaty of peace with Spain regarding release (f lpolitical prisoners of war: 563. Ienalty for desertion un(ler Spanish law: 564. provisions of Spanish co(le of inilitary justice: 563., 564-566. action on request of imilitary government of Cubla: 56(6. Illinois: law.- relating to treason, etc.: 673. Impeachment: c(ause o(f proceedings in Co(,ngress for, of 1PresideIt Jollnson: 244. Imperialism: clharge of, lreferred igainst Tholnlas Jeffersonl: 121. l)asis for charge against Jefferson: 122. Louisiana lpurchase treaty assailed as act,)f: 122. Import duties: levy of, in California, etc.: 102. collection of, in Louisiana: 159. extension of United States laws over Louisiana: 160. right of government of the Philippines to illlI)ose, report on: 210-254. collected in the Philippines: 232. right of States to ilnl)ose under Confederation: 237. (See Customs. ) Imports: into the United States fromn country to which sovereignty of has never attached, subject to duties: 164. Imposts, duties, and excises: uniformnity of, throughout the United States: 91, 237. power of Congress to impose: 91, 92, 237. Imprisonment, provisional (in Cuba): to be counted as part of terni of service of sentence: 508. Inchoate rights: are of imperfect obligation, etc.: 193. Indebtedness: obligations of Spain not assumed by the United States: 182, 208. 764 Indebtedness-Continued. contention of Spanish conlmission regarding assullltionl of: 183. obligations of general governllent do.not pass with ceded territory: 182, 183, 328. which pass with sovereignty: 328. do not pass with sovereignty: 329. Indemnity: what is meant by: 342. Independence of the people of Cuba: joint resolution of Congress for recognition of: 31, 361. Indiana: laws relating to treason, etc.: 674. Indian Territory: laws relating to treason, etc.: '674. Indias, Recopilaci6n de: provisions of, regarding lpublic oftices: 200. (See High sheriff.) Indigo: export duty on, in the Philippines: 218. Individual rights: treaty to be considered as dated at its ratification as to: 516, 574. Industrial property. (See Trade-marks.) Inhabitants: of Porto Ricocivil rights and political status of, to be dleterllillned by Congress: 24, 46, 86, 175, 243, 246, 247. of islands acquired from Spain by the United1 Statesreport on legal status of: 37 et seq. citizenship of, discussed: 60. entitled to call upon United States for t)rotectiol, etc.: 61. owe allegiance to sovereignty: il. distinction between, and territory: 80. can become citizens only by specific act of Congress: 120, 175. do not possess right of free entry into the United States: 120. rights of the United States regarding allegiance of: 173. right to fix relations of, to Ulnited States vested in Congress: 24, 46, 243, 244. personal and civil rights of, of the Territories: 88. status of, of conquered territory, etc., determined by their own acts: 118. provisions of Louisiana purchase treaty regarding: 243. of New Mexico and lTpper California, attempt of, to settle relations to Federal Government: 243. of the Ihilippines, resolution of (ongress regardling citizenshlip) of: 247. Instructions: to Philippine (Colln ission: 229. Insular cases: legislative power not bouIln b}y constitutional limnitations in legislating for territory beyond State boundaries: 241. Insular Division, War Department: circular regarding duties of collectors of customs: 479, 481, 520. (See Collectors of Customs.) Insular possessions of the United States: report on: 37 et seq. Insurgents: in the Philippinesfirst hostile engagement with lUnitel States forces: 213. Insurgents-Cont; nued. in the 'hilippines-Contilnued. spirit of: 236. report on order of General Otis requiring (lelivery of mioney llel(l as property of, to Amlerican authorities: 261. seizure of funds of, y Alnerican authorities: 261. sovereign not responsible to aliens for injuries inflicteld by: 344. Insurrection: in the Philippines, right of Illite(d States to exercise lbelligerent rigllts il (lealing with: 211-218. character of: 236. war originatilg in, never formllally declared: 211. sovereignty engaged in supp)ressing, may exercise riglts of belligerent: 212. defined: 212. proclamation of Lincoln declaring certaini States in: 220. nonintercourse acts: 220, 221. against mlilitary governmlent in New Mexic,: 689. in California: 694. proclanmation declaring inhabitants of certain States in: 253. Internal-revenue laws: should b1e as universal in ap)li(ation as tariff laws: 171. tax, first levied: 171. extension of, to all places within exterior boundaries of United States: 171. International Ocean Telegraph Company: cable operated by: 281. clain asserted )by: 281, 282. act of Cuban government conllplained of: 283. action requested: 283. provisions of treaty of Iaris invoke(d in support of complaint: 283. opinion of Attorney-Geineral witll eferelnce to concession to: 284. basis of claim of exclusive privilege: 284, 285. rights of, under concession granted by Spanish (Governmlent: 286, 294. has no rigtlt to ob}ject to use of Governmellnt lilnes in Cuba 1y Fre-nch cable coinpany': 291. ionsideration of concession to: 95)-96. di(l not create. exclusive privilege of elgaging iln ca(le traftic bletweeil UniTted States and ('uba: 295. act of (ongress granting righlt to attach} cable to coast of Florila: 295. International union: for tlie protection of inldustrial property: 306. (See Trade-marks.) Invasion: results from war: 86. of Cuba, object of: 199. Iowa: extension of United States laws (oer Territory: 111. laws relating to treason, etc.: 674. Is-ands ceded( and relinquished )by Spanish Government: powers, etc., of military governments maintained in by United States, reporton: 11. report on legal status of territory and inhabitants of: 37. territory of, beyond territorial limits of the United States: 49. appertains to tle United States: 49. dutv of President to maintain sovereignty in: 49. result of war with Spain upon: 50. 766 Islands ceded and relinquished by Spanish (overnllent-Continued. revenues of, not considered United States property: 178. relations of, to Federal Government can not be fixed by treaty-making power: 243. (See Cuba; Porto Rico; Philippine Islands.) J. Jackson, Andrew, Maj. (Gen.: exercise of legislative and judiclal powers in east alnd west Florida: 30. controversy between, and Judge Fromentin upon doctrine of e. propio 'rigore. 137 et seq. appointment as governor of: 138. powers conferred upon as governor: 13X8. seizure of Spanish officers by: 139. refusal to obey writ of habeas corpus: 139. report of, on Judge Fromentin: 139. appeal of controversy between, and Judge Fromentin to Washington: 139. action of sustained by President, etc.: 139. (See Florida; Fromentin, Judge.) declaration that Constitution, etc., do not extend ex propio vigore over newly acquired territory: 140. Japan: consular courts in: 56. Jecker et al. v. Montgomery: right of President to establish courts in conquered country: 22. Jefferson, Thomas: charge of imperialism preferred against: 121. lasis for charge against: 122. message to Congress with regard to Louisiana pllrchase: 123. reelection of: 136. claim of, that West Florida included in Louisiana purchase: 161. views on policy of United States as to expansion: 122. Johnson, President: cause of proceedings for imlleachllent of: 24, 244. Johnson v. McIntosh: status of inhabitants of newly acquired territory: S7. Johnston, Samuel: cession of unoccupied lands by North Carolina to I nited States: 40. Jo16 Islands. (See Sulu Islands.) Jones v. United States: determination of national boulndaries, etc.: 250. Judgments: final character of, renderedl by courts of Cuba under Spanish sovereignty: 486, 487, 488, 509. Judicial powers in Philippine Islan(ls: il whom vested: 240, 233. Judicial proceedings: provisions of treaty of peace with Spain (1898) regarding, in ceded territories, etc.: 487, 509. (See Contencioso-administrativo.) Jury, trial by: is not a right, but a means of securing a right: 110. is an essential part of the common law: 110. is not an essential part of the civil law: 110. guaranty of, dates back to Magna Charta: 110. 767 Jury, trial by-Continued. right of, in suits at common law, applies to Territories: 110. in Territories: 110, 111,112. in the District of Columbia: 112. is an acquired right: 113. Justice: is an inherent right of mal: 110. right involved in trial by jury: 110. K. Kansas: laws relating to treason, etc.: 675. Kearney, Gen. S. N.: grant by, to San Francisco of right, etc., of United States to beach and water lots illegal: 28, 359, 390, 492. Kent's Commentaries: cited: 115. Korea: consular courts in: 59. Koszta, Martin: discussion of the case of: 118 et seq. L. Lamar, J.: discussion of foreign relations of the Unitedl States: 69. Lands: public, in the Philippines: 233. La Plata River, P. R.: application of Ramon Valdez for license to utilize water power of, report on: 492-500. (See Valdez.) Law: martial. (See Martial law.) civil. (See Civil law.) penal. (See Penal law.) international. (See Law of nations.) municipal. (See Municipal laws.) political. (See Political laws.) Blackstone's definition of: 30. Law of nations: President can not establish courts in conquered territory to aldminister: 22. obligations of, binding upon military government: 28. Laws: of conquered territory, right of King to change: 25. incompatible with character, etc., of United States (;overnment are null and void: 27. relating to alienation of pullic property pass away with surrendered sovereignty: 27. of the State must be enforced by sovereign: 188. embargo, enactment of: 238. in force under martial rule. (See Municipal laws; Political laws; Martial law and rule.) Laws of war: take place of Constitution of United States, etc., under martial law: 13. 768 Laws and usages. can not b)e applied to citizens in States upholding authority of (;overnment: 21. Legal power: duties of occupier when suspended: 11. Legal status: of territory and inhabitants of islands acquired by United States during war with Spain: report on: 37. Legal-tender cases: opinion of Bradley, J., in: (69. Legislative authority: not bound by constitutional limitations in legislating for territory outside of territorial boundaries of a State: 241. Legislature: will of, regarding national boundaries must be respected: 47. (See Congress.) of a State; lpowers of sovereignty exercised by: 108. can not bargain away police power: 205. Leib, Representative: debate on Louisiana: 132. Lese majeste: provisions of Spanish penal codle regarding: 548. L3tters of marque: constitutional provisions regardling: 25, 63, 86, 622. Liabilities incurred by Spain: United States not liable for: 180. (lel)t of General Government dloes not pass withl celed( territory: 182. Lieber's instructions: for the Government of United States armies in the field: 11, 14, 198, 212, 225, 335, 424. Lincoln, Abraham, President: attelmpt of, to weaken rebellion: 24. theorem announced b}: 105. election of: 105. declaration of Rlepublican convention which nominated: 105. proclamation of, declaring ports of rebel States blockaded: 220. certain States in a state of insurrection: 220-253. inviting rebellious States to form loyal governments: 243. Loans: authority of municipalities in Porto Rico to contract: 457-463. Lobo, Antonio Alvarez Nava y. (See Nava y Lobo.) Lorraine. (See Alsace and Lorraine.) Lotinga, A.: application to State I)elartlnetnt for purch ase off the wNreckof theAlfonsoXII: 558. (See Vessels.) Loughborough v. Blake: decision of Marshall, Ch. J., il: 91 et se(l. when decided: 92. right of Congress to inpose a direct tax oni the D)istrict of Columiia: 91. Loughridge, Representative from Iowa: debate on bill appropriating purchase price of Alaska: 152-155. Louisiana: provisional court established during civil war: 21. formation of State government in: 24, 244. refusal of Congress to recognize: 24, 244. 769 Louisiana-Continued. exerci~se o)f legislative and judicial p)owers, by (Governor Claiborne: 30. pulreliase treaty - (lelate on::134, 124-128, 129, 130. provisions of: 41, 77, 83. how miade effective: 43. assailed as anl act of imiperialismn: 122. ratification of, by Senate: 124. assailed as being, unconstitutional: 124. formulation, app~roval, and ratification of: 1,59. provisions of, regarding inhabitants of cededl territory: 243. status of ceded territory to F'ederal G(4)verniinent: 243. trade: 332. (orminissioners sent by Jefferson to secure traiisfer of possession: 43. code of laws in, ill 1803: 44. p)urchasedl ly 1 nitedl States in their confederate capacity: 67, 78. acqluisition of, by United States,: 717, 85, 104. Congressional ac't providing for governmnent o-f: 708. authiority grante(1 Indiana officers o)ver: 78. purchase of, purposes of: 79. miessagre fromn Jefferson to Congress withi regard to p iirchiase o)f: 1 23. passage, of bill. providing for government, o)f: 131. Iprovisn4ins of final bill for government, of: 132. (delate onl bill p)rovidling Territorial formn of governmient, fo~r: 1:12 et seq. tariff inl: 1St) et seql. Gallatin's report on the finances: 159, 1(1. revenue collected at New Orleans: 159. instructions of (Gallatin to Claiborne for taking i ss~ession o)f: 159. duties on imports an(1 exports: 159. appointment of 1-1. IR. Trist, as collector at New Orleans".: 159. instructions o)f (1allatin to Trist regarding taxes, etc.: 1S-9. extension of United1 States laws regarding imports andl tonnage to: 1 60. purchiase: claim of,Jefferson that west Floridla incluided in: 1.61. adlvantage in imlportation of Frenchi and Spanishi produicts to New ()rleans: 162. inhabitants of, declared inl a state of insurrection: 2,53. laws relating to treason, etc.: 675. Ludlow, William: Civil governor of ilabana: 4,53. Lumber in thie Philippines. (See Timber; Forests; Franchises.) Luzon: admiinistration. of: 231. (See Philippine Islands.) Lyon, 1{elresentative: deb)ate on Lonisiamia in House: 1:3:3. Ml. McCulloch v. State of Maryland: (hiaracter and scope of legislative power of Congress,; opinion of Mlarshiall, C"li. J.: 70 et seq. McKinley, William, President. sentiments, regyarding, islands ceded by Spain, etc.: 64. letter to Secretary of Wtar relating to governmnent of civil affairs inl Cuba, etc.: 217. order of, imposing (ustonms duties inl the Philippines: 217. appointmnent, of Plilflippine Con-mnission. by: 2299. 1 394-03 4'9 770 McKinley, William, President-Continued. order of, prohibiting the grantingof concessions, etc., in Porto Rico: 385, 440, 464. message to Congress regarding municipalities in Porto Rico: 375. letter to Secretary of War on powers of military occupant, etc.: 517. McPherson, United States Army transport: report on claim of American Mail Steamship Company, for towing: 414. Madrid Gazette: extract from, regarding Cuban debts, etc.: 185-186. Magna Charta: guaranty of trial by jury: 110. Maine: laws relating to treason, etc.: 676. Manila, city of: claim of Merryweather & Sons, on account of refusal of, to permit further execution of contract: 407. seizure of funds found in Spanish treasuries t)y iUnited States forces: 621-625. recommlendations: 624. approved by Acting Secretary of \ar: 624-625. report on claim of J. Antonio Molmp( y I'lhI for refund of excess duties: 625-630. approval of views by Acting Secretary of War: 630. (See Philippine Islands.) Manila-Dagupan Railway concession: refusal of United States to assume obligations of: 182. payment in lieu of transfer of obligation: 182. guarantee contained in, not a lien upon revenues of the Philippine Islands: 193. Manila Railway Company: report on claim of, for payment by United States of interest, etc.: 177 et seq. concession to, for railway froml Manila to Dagupan: 179. terms of concession: 179. amount invested in railway: 179. claim against United States Government: 179. guaranty of Spanish Government contained in concession: 180. contention of, regarding character of obligation sought to be enforced: 185. subvention guaranteed to, by Spain: 179, 186. United States not liable for: 179. is not a lien upon Philippine Island revenues: 193. Marcy, Wm. L.: instructions to Colonel Mason in California: 102. Maritime Captures. See Captures. Market house: contract for, in Sancti Spiritus, an(l rights thereunder of Primitivo Gutierrez. (See Gutierrez.) Marque, letter of: constitutional provisions regar(ling: 25, 63, 86. Marshall, John, Chief Justice: opinion of, in McCulloch v. State of Maryland: 69 et seq. opinion of, in Loughborough v. Blake: 91. on effect of action of political branch of (;overnllent regar(ding territory: 47. in Johnson v. McIntosh: 65. as to right of Congress to impose (lirect tax oil District Columbia: 91. in American Insurance Co. v. Canter: 94. on confiscation of property: 280. Marti y Buguet, Ramon: report on a(llinistratioll of estate of: 473-478. holding of court at Santa Clara regarding nationality of: 473, 476. sustained by secretary of justice of Cuba: 474. contrary to provisions of treaty of peace witlh Spain: 477. jurisdiction of Santa Clara court to institute testamentary pr)ceetlings: 477. action taken by Secretary of War: 478. Martial law: inlmnedliate anil direct effect of occupation, etc.: 11. (does not cease during hostile occupation, and exceptions: 11. define(l by Chief Justice Chase: 12, 363. is military authority: 12, 363. civil and penal law contiinue in force unless otherwise ordlere(l: 12, 14, 198. legislative, executive, or adminiistrative functions (~f liostile government cease un1der: 12, 198. all authority called into action in locality of IUnited States: 12, 363. takes place of governmental agencies un(ler certain conditions: 12. occasion of, is public exigency: 13. ceases when (listrict sufficiently tranquil: 13. functions of liostile government cease under: 14. effect of exercise of, wheln regulate( l by Congre.ss: 36. (listinction from(i ilitary law: -36, 278, 36S8. is unwritten law: 36. is beyond juris(lictionl of Congress: 36. defined bly P'omeroy: 19, 36, 229, 278, 363. affects chliefly police power and collection of l)ublic revenues: 424. Martial rule: is an element of tlhe js hb/1i: 13. incidental to state of war, etc.: 13. when resort mav b)e liad to: 14. intention of: 14. private property may be taken for Iul)lic lpirl)oses unl er: 14. is the creature of necessity: 15,:5. ima become a necessity in case of foreign invasion: 15. provisions regarding, i rereonstruction acts: 17. occasions when, can be ap)lliedl: 21. (can not exist where courts are open: 21. includ(es authority to deal with eachl necessity: 26. necessity, meaning of, il connec tion witil justification of: 26. of, limust be shown: 35. if made subject of legislation, justification is question of law: 35. (See Martial law; Military Government.) Maryland: refusal of, to ratify Articles of Confederation: 75. creation of monopolies iIn, prohibite(l: 296. laws relating to treason, etc.: 676. Maskat: consular courts in: 59. Massachusetts: cession of land by, to Federal ( overnlment: 123. laws relating to treason, etc.: (678. Mason, Colonel: proclamation of treaty witli MIexico in California: 101. 772 Mason, Colonel-Continued. announcement regarding military government: 101. instructions of William L. Marcy to: 102. Matadero River: concession for canalization of, report on: 571. application of Pelaez de Amigo and Manuel Gomez de Aranjo for concession: 542. authority to construct (anal granted: 572, 579. purchase of concession by Habana Canal Company: 572. report of Brigadier-General Ludlow on: 572. opinion of Juan F. O'Farrill that decree granting concession is null and void: 575. concession is prima facie lawful: 577, 587. Habana Canal Company entitled to exercise rights created by concession: 578, 587. construction of recognition of concession: 578, 587. courts of Cuba not bound by recognition: 578, 587. exercise of rights claimed subject to direction of provisional government, etc.: 578, 587. approval by Secretary of War of views expressed in report: 578, 594. opinion of Jos6 R. Villalon as to validity of concession: 588. opinion of admlinistrative council against validity of concession: 590. recomlnendations as to proper action: 593. instructions of Secretary of War to General \Wool: 594, 595. Matthews v. McStea: regulation of trade with hostile territory: 221. Mazzantini y Equia, Tomas: contract with municipality of Habana: 541. Meiklejohn, Geo. D.: action of, on claim of Miguel Porrata Doria: 451. Antonio Alvarez Nava y Lobo: 457. action on report on claim of erlllin Sagardia: 472. denial of application of Frank H. Griswold: 495. approval of views set forth in report on concession to canalize 3Matadero River: 578. Merryman v. Bourne: ownershlip of municipal lands under change of sovereignty: 384, 468. Merryweather & Sons: report on claim of, for (damages occasione( by refusal to permit further execution of alleged contract: 407. claim alleged by: 407. commiiunication to Secretary John Hay: 410. final disposition of, by Secretary of War: 411-414. Mexico: treaty of 1848 with the United States: 41, 83, 96, 101, 166. necessity of military government in New Mexico and California: 16. provisions regarding protection of property rights: 383, 464. how made effective: 44. proclamation of: 101. message of President Polk notifying ratification of: 168. treaty of 1853 with the United States (Gadsen Purchase): 42. peso of, principal medium of exchange in Philippine Islands: 256. export duty on, in the Philippines: 257. succession of, to territorial rights of Spain: 304, 327. relinquishment of Upper California and New Mexico: 41. 773 Mexico-Continued. ambassador at Washington, request for information as to extradition of fugitives from justice in Cuba: 523 et seq. end of Mexican rule in California: 28, 359, 390, 492. Meyers, Benj. F., Representative from Pennsylvania: debate on appropriation of purchase price of Alaska: 155. Michigan: laws relating to treason, etc.: 678. Military authority: supremacy of, over civil authority, repugnant to principles of United States Government: 23. Military authorities of United States: not prohibited from maintaining governments: 12. Military districts: division of rebel States into: 17. Military government: in islands ceded by Spain; report on powers, etc., of: 11. powers of, in civil affairs, after peace treaty of 1898: 16. justified and required until civil government established: 16. (See Islands. ) in Californiaorigin of: 12. how instituted: 12. continued existence of: 16. in New Mexico: 12. continued existence of: 16. in Cubaeffect of treaty of peace on: '19 et seq. substitute for previous sovereignty: 31, 538. derives its powers from laws of war: 34. identical with military operations of a belligerent: 35. right of, to expropriate private property: 360. exercise of judicial powers by: 580. in Porto Ricodoes not occupy place of sovereignty of Spain: 20. effect of treaty of peace on: 19 et seq. is representative of sovereignty: 20. purposes of: 26. means of accomplishment: 26. may exercise police power: 28. right of, of civil affairs to issue military orders: 29. in the Philippineseffect of peace treaty upon: 19 et seq. originally an instrument for promoting war with Spain: 36. is authorized to exercise rights of belligerent: 36. administration of: 232. in Texas, duration of: 18, 235. is dominion exercised by belligerent power: 12, 362. is a form of military jurisdiction: 12, 363. takes place of suspended or destroyed sovereignty: 12, 363. occasion of, is expulsion of existing sovereignty: 13. continues until permanent sovereignty established: 13. powers of, how restricted: 13. how administered in ancient times: 13, 62. 7 74 Military government-Continuedl. not considlered as doing away with all laws: 14. powers of, wAhen dlevoted1 to civil affairs: 15. is the, creature of necessitv: 15". may cotinume in lbello cessante or in flagrante lbello): 17, 36'3. couirse (.)f Con~gress regrardling, after civil war: 1 7. may continule after cessation o)f hostilities: 17, 25, 363. p)rovisions o)f, regarding, in recon-struction acts: 17. reasons for, in rebel Steates: 18. is authority by which. commander governs conqlueredI territory,,t(.: 18, 229, 26.3. ceases at the pleasuire of him who intstituted it: 18,.363. (lifference of power of, for promoting warfare and in time o)f lcace: 21. by martial rule until laws can hfave their free course: 21. l)Urpose of, after (cessati()1 of war: 23. right, of President to form, (luring war: 2.3, 25. Conigress may terminate temporary government. formed 1 y Presidenit: 25. reqn1iiren-ents, of7 in conli~ere(1 territory in tine of peace.: 296. jprovisions, of treaty of Ipeace and international law binding uponi: 28. has no imght to (Ym ant lands or confirmo titles: 28. 359. mi-ay exercise legislative p)owers. inl time of war: 29. in time of peace is lawfuil government and governm(lit o)f Law::30. can not delearue sov ereign will of the peol)ple: 1,51. civil andI penal I aw ( ontinues in force under, unless, otherwis,_e ordlered:.12, 141, 198. legislative e-xe cutiv e, or administrative functions o)f o)pposhing 5(verehynty cease under: ]2 198. (luities of: 216. is slib ject. Only to -onliditions andI rest4rictions o)f laws of war: 278. regulation of trade an finidlent. of: 302, 225, 3251,:338. teimnination of, not coincident wirth cessation of hotlte:19, "363. a substitute a(1 'oteroim for soverei~yntv: 366. right, of military authorities to maintain: 1 2. IBirkhimner on: 18, 363. Military governor: officer acting as, to olhe cv olers o)f sulwermirs: 28. Military justice: provision.s o —f Spanish c(le of: 56:3), 564-566. (See Idulla Saez.) Military law: (lis-tinction from niartial law::36,7 2718, 368. Lieber's; Mianulal for Unitedl S'tates, Army in tI e Field: 11, 14, 198, 212, 225,:335, 424. Bruss,_,els, projecet o)f all intermiatil nal (leclaration concerning la\\s, (If war:.11. Military necessity: What. is undlerstoodl by: 12. Military occupation: services to be performed by, military governments arising fromu: 11. functions of hostile government c-ease under: 1.4. civil and lpenal law continue ill force under: 14, 1.98. authority of local, civil, and judicial admninistration suspemided unmler: 198. creates obligation to provide for administration of civil affairs: 216. regulation of trade with territory suibject to: 225. lprodiuces no effect on private property: 386, 464, 543. Military operations: in the Philippines: 2.37. 775 Military power: exercise of, not to lbe pushied beyondi requiremnents of exigency: 1) necessary to govern Pifhlippines, in whiom vestedl: 241, 233. Miller, J.: opii)iol) ill KoAszta cas.-e: 1.1I9. Milligan, Ex parte: powers of Congress to dfirect operations of inilitary forccs: "35, 278, 279, 368. (See Chase, Oh. J.) Mindanao: admiinistration of: 231. (See Philippine Islands.) Mindoro: admninistration of: 231. (See Philippine Islands.) Minerals: (See Mining claims.) Mining claims: in Cuba: 3,51-373". order of inilitary governor continniingo ranti ng o:352. owners~iil) of miineral, uinder Spanishi laiv::353. laws relating to, under Spanishi (loliinion cont~inuediic(ler1(c A uuerican )ccuipation: 356. Spanishi laws in force::357. p wlers co nferredI ill) p)lrovincial governor: 368. irovisions4 for e~xercis,!e of righit of emninent doinain: 359. 01)111101 of Attornev-(General: 3710 et seq. iii lol)ito Rico: 351-:373. in the lPhilippines: 351-373". prv.-.in rcgardling miining burcati::352. (See Foraker resolution, etc.) Mining rights in thie Phlifppines~: 2331. (See Mining claims.) Minnesota: lawvs relating to treason, etc.: 675. Misprision of treason. (,See Treason.) Mississippi: inhabitants of, (leclarelI in a state o)f fillsurrectiomi: 253~-. laws relating to treason, etc-.: 6719. Mitchill, Represenitative: delbate in lHotse on Louiisiana ptircllase treaty: 127. Momp6 y P16, J. Antonio: reiport 011 claimin for refund of excess duties inilposed at M'Nanila: 625-6:30. aplproval of views 1y Acting Secretary of WN'ar: 630. Money: of tlietUnited States, act of Phfilippine Comumniission to p.rev'ent lis~-crinmiiimation against, report on: 2055. puirposes of Commiission in p)assing: 256. seizure of, lbv UnitedI States imilitary forces found iii Spanishi treasuries in MNanila: 621-625. recommnendations: 624. app1roval of, by A-cting,'Secretary of War: 624-625. Monopolies: creatiomi of, prohiibited in soine States: 296. (reated in Cuba under Spanish sovereignty: 5139. 776 Monroe, James, President: action of, on controversy between Andrew Jackson and Judge Fromentin: 139. declaration that Constitution, etc., does not extend ex proprio vigore over newly acquired territory: 140. (See Ex proprio vigore.) Montana: extension of United States Constitution to: 90. laws relating to treason, etc.: 679. Moore, International Arbitrations: unlawful acts of individual soldiers: 343. Moore v. Steinbach: continuation of laws affecting public property after Chainge of sovereignty: 27, 384, 465,468. Morel, M.: director of the International registry of trade-lnarks: 306. letter to Secretary of the Interior regarding trade-marks in the Philippilles: 306, 307. Mormon Church v. United States: power and scope of legislative powers of Congress: 85, 88. Morocco: consular courts in: 59. Mumford v. Wardwell: power of military governors to grant lands, etc.: 28, 359, 390, 492. Municipal councils: law for reorganization of, of Cuba of 1859: 208. Municipalities: in Cubareport on right of, to grant permission to railroad companies to cross highways, etc.: 374-391. right to acquire property, etc.: 374, 382. real property acquired by: 374. how affairs of, conducted: 374. action of municipal officials subject to approval of general alministration: 374. purpose of surveillance: 374. Spanish laws relating to, continued in force under military government: 374. laws of, substantially the same for Porto Rico: 375. policy recommended by President for Porto Rico adopted anl pursuedl in Cuba: 375. progress lmade toward independent administration of their own affairs: 375. petition for increased railway facilities: 375. how property belonging to, may be divided: 377. streets and highways owned by: 378. how property of, divided by Spanish law: 378. right of, to alienate rights to streets: 378. power of, to regulate and control use of streets under Spanish law: 378. authority of, to grant permits for use of streets: 378. provisions of municipal laws in force under Spanish sovereignty: 379. general law of public works: 380. regulations for its execution: 380. railroad law for: 380. regulations for the execution of: 380. establishment of towns within limits of: 381. land dedicated to public use as streets is public property: 382. 777 Municipalities —Continue I. in Cuba-Continued. purpose of Foraker amendment as to Ilulnicipal rights in Cuba: 387. effect of: 387. c'an not alienate title to land which passes to United States under ternis of treaty of peace with Spain: 383. possess same rights of property as under Spanish sovereignty: 388, 389. may exercise ordinary rights of ownership over their property: 389. authority of military government over affairs of: 390. how land owned hv, may be encumbered or conveyed: 391. extent of powers of: 470. how franchises granted )by, under Spanish law: 470, 471. rights belonging to the peaceful possession of property not iln)airel: 543. Foraker amendment not to be construed as prohibiting, to exercise ordinary rights of ownership, etc., 543. in Porto Ricocan not alienate title to land which passed to the United States un(ler terms of treaty of peace with Spain: 465. report on granting of franchises by: 463-471. can not alienate title to land which passed to the United States under ternms of treaty of peace with Spain: 465. right of, to acquire real estate: 465. own streets constructed and maintained with municipal fullnls: 466. report on right of, to contract loans, etc.: 457-463. authority and obligations of, as to public works, etc.: 459. rights of, under Spanish sovereignty retained upon cession of island to the United States: 460. report on granting of franchises )y: 463-471. (See Property, private.) jurisdiction of, over streets: 440, 464. have the same rights as natural persons to dispose of their property: 386, 463, 543. how franchises granted by, un(ler Spanish laws: 470, 471. rights of, to be respected equally with those of an individual: 441, 463. Municipal laws: of deposed sovereignty continue in force under martial rule: 14, 29, 226. of territory subject to military occupation govern relations of inhabitants inter se: 26. may be suspended by conqueror during leriod of war: 26. N. Nation, sovereign: inherent right to ac(quire territory: 37. have equal rights and equal powers: 68. National Bank v. County of Yankton: government of Territories of the United States: 107. Nationality. (See Aliens; Allegiance; Citizenship; Naturalization.) Naturalization laws of the United States: letter of Lord Grenville to Rufus King with regard to: 117. of aliens: 119. early American doctrine of expatriation: 117. (See Aliens; Allegiance; Citizenship.) Nava y Lobo, Antonio Alvarez: report on claim of, for damages for being deprived of the office of notary: 454. reasons for rejection of claim: 455. action of War Department: 457. 778 Navassa Island: authority of Congress to legislate for: 30. Navigation laws: enforcement of, in Califor'nia: 10o.`) extension ov-er Alaska: 1.70. Nebraska: lawis relating to treasoni, et(.: 679. Necessity: mieaning of, in connectifh oo withi justification o)f imartial rule: 26. Neely, C. F. W.: report on question of inisertiing chiargre of (on~slpiracv in criiiiinial coitplaint ag-ains,,t.: 5' 45-554. prov-isions of penal c('ode for (unha violatedl hv1: 550). postal c()(le v-iolatedl by: 550. Neutrals: belligerent not re(luire(l to pay for daiiages- to property of, in track of wvar: "341. resiolence in eneimy's countryv ex poses his property to enemy'ts risk: 8)48. New Hampshire: laws relating to treasoni, ety.: 679. New Jersey: lawNs relating to treason, etc.: 680O. New Mexico: miflitary gov-erninnent of: 1.2. COnitinuedl existence of, inl: 16, 20. provisional gov\7ermnnent lproperl y establ isihedl y ExctNe authority (luring M\cxicaiwar: 22, 218. relinquishmnent, of, by) M.\exico(, hv' treaty of 1848: 41. title of United States to, perfected Ivy conq(uest: 41, 51, 166. righit of, to Statehoodl: 81. p~rov-isions of act to estab~lish Territorial grovern nlient for: 90. (lehate in Congress on extension of Constitu~io-n1 etc to96 conquest of, accomnplished h~y campaign of 1846': 166, 270, 501. customs, (duties, exacted b~y gov-ernmient of c-ivil affairs: 166. organization of inidependlent State gov-ernii-ent: 1 69, 24:3. refusal of Congress to recognize Senators anol Representativ-es,: 16'9, 2483. organization of civ-il gov\ernm-ent, for occunied territory: 270, 5(11. conspiracy to ov-erthrow tUiteol States authority: 271, 501. trial of insurgent prisoners: 271, 501. indlictmnent of, for treason against the Viiite(l States: 271, 501. letter of Frank P. Bl1air to _Attorney-(Cen eral relating to indlictmucit o)f prisoners: 271 272, 501-502. civil gov-ernmtient inl, rested uponi rights acqut-iredl lv conjquest: 278. situation in, in 1.848: 276, 507. title of United States to, comninences with comnlpletion o)f coniquest: 2771, 507. right of military gov-erninent to institute courts: 2977. exercise of the power to pardlon undler miflitary gov-ernnmemmt: 501-507. refusal of President to exercise powNer of lpar(lon: 274, 504. case of Antonio M~aria Trujillo: 272, 502. insurrection against mnilitary governm('nt: 689-730. New Orleans: preference giv~en to, ov-er Unitedl States ports: 78. appIointinent of 11. 14. Trist as collector at: 159. revenue collectedI at: 15sO. 77V) New Orleans v. Steamship Co.: l)oA\-ers of limilitary governlllellts: 217, 278. New York: transfer of ilniocc(il)ie(i territory to (6 eneral oovernietelt: 40, 12'. laws -relatiln to treasoll, et.: 0681. Nicholas, Senator:: (leb)ate (:oii Louisiana l)urclarlase treaty: 129). Nicholson, Represenltative: (lel)ate inl Ilouse on Louisiaiina 1)ircllase treaty: 127. selectionl of, to d(efell I,olisianla pluirclihase treat,': 7s. Nonintercourse acts: 220, 221. North Carolina: tranlsfer of unocc(uIlie(l territory to, (;eneral (;ov-erllnellt: 40, 128. ratification (cf Co(lltittiotlti(l f Ullite(l States i)': 77, 10)4, 158. cxtensio)n of revenue laws to: 104, 158. iIilhal)itants (,, (leclare(l in a state of insultrrection: 253. 1i0o01o)olies 1j)r( lilited in: 290. North Dakota: la\-s relating to treasons, e(tc(.: (;81. Northwest Territory: ac(Iluisitionl o(f jllris(liction ) over: 75. 1)lajn of (gov:ernlnllllt f or, repol)rtedl: 75. orldinainces f or g(overiianmet (-f: 75. lorovisiolls of: 76. Matin mal {(,l)'('ct w-itl: 75, 70, 8 8. (listols law-s in: 158. tlratle witll ('ianala: 15S. Notaries in IPlrto Iic(,: clailn of Anto)nio Alvarez Nva v\ Lo,,,, for dmamages for ei]lng (ll)ri ved(1 of the offi(e of: 454 et se(1. reasons for rejecti(,ll ()f clailn: 455. action (l of War l)el)partmient on: 457. (. Obligations: (,f Slainl not assuiiledl lv thle niiitedl Staites: 182, 208. (See Manila Railway Company. ) ((,loteltio)N (,f Slanisl( Co)llllissio reegardlilg assumptioi (,f: 183. Of (leneral (;overnie t d(1, it )ass withl c(eded territory: 182. 1S83, 328. w\ ticlh 1)ss with s( overeiginty: 328. (i(t nlot plass iwitli sovereignty': 329. Occupation, Illilitary (see Military occupation): territory miay l)e acqu(iire(l l)y: 51. is the telilnorary retention of territory: 386,.543. (See Territory; Acquisition of territory. ) Occupier: (luties (,f, whmen leg(al,)o\Wei susI)enlded(l. O'Farrill, Juan F.: opinion as to vali(lity of dlecree granltinig c(,iiessioll for canalization of Mata(lero Ri-er: 575. (See Matadero River. ) OfFenses anll c(riiiies: comnmitted onl tlie lighl seas, et(c.: 55. 780 Office: public, is not property: 197, 203. authority of Spanish office holder in Cuba ceased witlh withdrawal of Spanish sovereignty: 197. right to, not protected b1y treaty of peace: 206. provisions of Recopilacion de Indias regarding: 200. power of disposal of retained by Crown of Spain: 20:-. rights of administration held by purchaser: 203. incumbency subject to the royal will: 203. termination of incumbency not an exercise of the right of eminent donain: 204. reversion to the Crown of Spain and repurchase of offices, etc.: 205. provisions of Spanish law regarding purchasable and assignable: 208. (See High sheriff.) Officers of the United States Army. (See Army officers.) Ohio: laws relating to treason, etc.: 682. Olive Branch, the: case of: 163, 164. Oregon: message of President Polk regardingr: 168. laws relating to treason, etc.: 682. O'Reilly, Countess. (See Countess of Buena Vista.) Orleans, Territory of: tariff system in: 104. when admitted as State of Louisiana: 104. Otis, Gen. E. S.: report on order of, requiring Smith, Bell & Co., of Manila, to turn over to American authorities money held as property of insurgent forces: 261. opinion of, regarding trade with Sulu Islands: 333. Ownership: (lefined by Spanish code: 378, 466. P. Palawan Islands: administration of: 231. Palmer v. Low: right of municipalities to grant lands after change of sovereignty: 385, 469. Pango-Pango, in Samoan Islands: turned over to American Government: 59. Pardon: memorandum on the exercise of the power to, under military government in New Mexico: 501-507. enemorandumn on orders of military government of (Cuba relating to the exercise of the power to: 501-507. refusal of President to exercise power of, in case of Antonio Trujillo: 272, 502. (See New Mexico.) Paris Conference (1898): (See American Commission; Spanish Commission.) Peace, treaty of. (See Treaty of peace.) Pelaez de Amigo, Felipe: application for concession to canalize Matadero River in Ilabana Province, Cuba, report on: 571. (See Matadero River.) Penal code: Spanish, in force in Cuba, provisions of, violated by Neely and Rathbone: 550. p781 Penal code-Continued. provisions of, regardingtreason: 548. I~se inajeste': 548. rebellion: 549. sedlition: 549. Penal law, and civil: continues in force in enemnies' t~erritory under mnilitary governnment: 14, 198. Pennsylvania: laws relatiiig to treason, etc.: 682. Pensacola: advantages granted by treaty with S'pain to: 162. Persia: coiisnlar courts in: 59. Phillimore onl International La-w citedl: 51. Philippine Commission: appointmient of: 229. instructions, to: 229. transfer of legislative powers to: 230. executive powers conferre(1 on: 230. puirposes of, in passhing act to prevenit (liscriniinationi against Uilitedl States imoe:256. a(lniission1 Of Mexican pesos free o)f (lutvy: 257. iIct iimposing exp~ort duty onl Mexican coinage: 2,57. act of, toIevent (liscrimniination against 17nited States currency not in contraVentioni of priiiciples estalblislhed for protection of p~rolerty- rights inl tile Uniitedl States: 260. Philippine Islands: explanation o)f mioney payment in case of: 187. (ap~tire of capital of, sufficient basis of good title for the U nitedl Sta~tes: 45. right, of goverunment, of, toinJoe export. taxes, if territory not hostile: 237-241. how national authority of U~nited States exerciseol inl: 239. beinog hostile, iulider governing authority of wvar powers of nation: 2,51. army- iii: 215, 228. exercise of belligerent. rights by United States9 in, not affected hy treaty of peace With Sp~ain: 216. all branches o)f governmient of, to be conisidlered as instriuments with -which a belligyerent is waging~ a Nvar: 279. eiicampmient of troops in, report onl claiim-s by reason of::388-350. claiiis for (lainage to property lby imosurgents, etc.: 343. batteries, etc., left. by Spanish forces.,, agreement as to: 567. cession of, byN Spain: 46. (hiinese finuimigrationi, order p~rohi ilting: 482. civil go~vernniientestablishmtent, of, is a war mneasure: 229: appointmemit of Phili l)lpile Commiiission: 229. transfer of legislative powers to: 230. executive powvers conferred on: 230. appointmnent. of W~illiain 1-1. Taft as civil governor, inauguration of: 231. 10o wers of, exzercis-ed lby (civilian andl military officials: 231. 1POI(i1Wes.mfl(1 islandis uender: 2:31. righlt of, to enforce taxes, etc.: 241. cocoaniut palmns, value, etc.: 608. 782 Philippine Islands-Continiued. commerce - right of government to regulate, with, report on: 210. with unlawful: 222. authorized with certain parts of: 222. ports open to foreign: 232. right of United States to regulate, witlh: 241-251. prohibition to trade with: 303, 322. letter of Admiral George C. Remey regarding: 322. declarations of American commissioners (1898) regarding open ldoor in: 331. policy of the United States in: 331. confiscation of property as punishment for treason against Unitedl States (G;overnment: 270. as a punishment for resisting lawful authority of military goverunment: 270. customs tariffright of government to impose import and export duties: 210. exacted by government of, enforced by exercise of belligerent right: 211. or(ler imp)osing: 217. export duties in: 218-225. authority of President to enforce: 218. debt of, statement regarding: 187. d(IewooI(s, number known in: 608. Eastern Extension Telegraph Company, claim of: 529-531. forestsprovisions of Spooner amlendmenllt: 233, 240, 604. extent of: 607. means of communication: 608. surveys: 609. formerly belonged to the Spanish Crown: 610. belonging to the UTnited States are part of the property of the United States: 612. right to dispose of, vested in Congress: 612. (See Spooner amendment.) franchises in, provisions regarding: 233. (See Spooner amendment.) gum trees: 608. gutta-percha trees: 608. inhabitantsSenate resolution regarding intentions of United States as to: 47. rights of, distinct from rights of citizens of the District of Columbia: 114. resolution of Congress regarding: 247. insurrection iinauthority of Inited States to exercise belligerent rights in dealing with: 211-218. first engagement between insurgents and United States troops: 213. territory of, hostile while, continues to be wage(: 228. character of: 236. spirit of insurgents: 236. military operations in: 237. seizure of insurgent funds by American authorities: 261. legality of: 262. claims for damage to property by insurgents: 343. Mexican pesoprincipal medium of exchange: 256. importation of, free of duties: 256. 783 Philippine Islands-Continiied. military governmnenteffect of treaty with Spain (1898) upon: 19 et seq. ani instrument for p)romnoting war with Spaini: 8(36 authorized to exercise rights, of belligerent: 86. (difference betweeni, and civil governmienit in: 28~2. right to reguilate tradle: 8132. mnining claims andl rightsdispos~ition of, in: 2833. awl alppurteniant p)rivileges in, relport onl: 351-9373. provi~sion regardling mining buireau in. 352. puiblic lands ini: 233. (See Spooner amendment.) Uniited States has title as proprietor: 8353. revenues of, not butrdenedl 1y trust in favor of Manilfa Railway Coniipanyv: 193. rubber trees: 608.,sovereignty overacqnuired by the Unitedl States,: 36, 8321. positioni taken by Amierican coIiiiinissioniers regar iiwn: 2147. belongs to the, I nlitedl States: 8~'21. is exercised by m-ilitary governm-lent: 821. Spoonier anieindinentprovisionsis of: 233, 240. report oii conlstrutction to 1 e given to): 604. timnber in, sale of: 2:33. (See Spooner amendment.) trade. (See Commerce.) trade-marks in, report onI: 30.5-815. (,See Trade-marks. ) war ii-aterial left by S'paniish forccs, agreement as to: 567. yl ang( vlarng tree, abuindance, of: (308. Phosphate deposits: report onl annulhment o)f title to, iii Caja le i\Iuertos Islanid, granted by G3eneral 1lenrv: 448-4,51.. (See Mining claims.) Pickering, Seiiator: (lebate on Louisiana purchase treaty': 131. Piracy (omninittedl onl them high seas: power' of Coiigress,, to define, et(..: 62. Police power: mnay 1e exercisedl by military governmnent of P~orto Rico): 28. one of the highest powers of sovereignty: 201. SoVereigntv can not divest itself of: 201, 5838. delegate it: 201. c'an not be bargained away by legislature: 205. Political laws: (l0 not conitinue in force in newly acquired territory: 27, 29, 94. not in conflict with Conistituitioni, etc., meay be conthinued in force: 27, cease upon traiisfer of sovereignty: 188, 200, 359, 389, C44. Political status: of inhabitants of territories ceded by Spain: 24, 46, 86, 175, 243, 246', 247. (lefinedl: 246. difference between, of territory awl of inhabitants: 246. Polk, President: statement respecting continued existence of mnilitary governmnents iii New MNexico an-ld Upper California: 16. 784 Polk, President-Continued. message of, regarding annexation of Texas: 168. messages of, regarding Oregon: 168. message notifying Congress of ratification of tieaty with Mexico: 168. relating to collection of revenue in California: 169. retirement of: 169. authority to dispose of funds derivedl from customs revenues of territory occupied by United States armies: 430. discussion of character of military government: 274. Pomeroy's constitutional law: on military government and martial law: 19, 36, 229, 278, 363, 368. Ponce, P. R.: board of harbor works of, application to United States (4overnment askiing assistance in collecting claimn against Spain: 484, 485. claim of Vicente and Jose Usera, relating to alleged concession for tramway from, to Barrio de la Marina: 531-534. proceedings had not sufficient to create completed grant: 533. application of (askill et al. for license to construct railway in, etc.: 650-i655. Porrata Doria, Miguel: report on amendment of title granted to, 1,y General tlenlry to Caja le \ Inertos Island, etc.: 448-451. Porto Rico: when sovereignty of the United States attaclhed to: 19, (366. is territory of the United States: 19. United States no longer exercises powers by virtue of belligerent right: 20. is property seized as spoil of war: 25. sovereignty of the United States permanently attachedl to: 29. right to legislate for, vested in Congress: 29. capture of capital of, sufficient basis of good title for lUnited States: 45. cession of, by Spain: 46. legislative power in legislating for, not b)oun(l b)y constitutional limitatiolns: 241. situation in, after ratification of treaty of peace: 242. right to administer government of, continued in military commlnand(ler after ratification of treaty: 242. batteries, stationary, and war material left by Spain; report on suggeste(l agreement as to disposition of: 566-571. civil affairs of, War Department divested of jurisdiction over: 351. civil governmentnecessity of establishing: 25. authority vested in Congress to establish: 25. claim of Vicente and Jose Usera relating to concession for construction of a tramway: 531-534. concessions and franchises in; order of President McKinley prolhibiting the granting of: 385, 440, 464. corporations, application of Frank H. Griswold et al. for articles of inc(rporation under laws of: 490-495. can not be created under laws in force under Spanish dmlninion: 491. manner of incorporation under Spanish laws: 492. (See Corporations.) no law existing in IPorto Rico for creation of: 494. courts established in, can not be authorized by President to pass on rights of the United States: 30. debts, payment of, contracted in Mexican money: 648-650. proposed judicial order regarding: 648. 785 Porto Rico-Continued. fortifications, report on suggested agreement as to disposition of: 566-571. franchises, report on granting of by municipalities: 463-471. inhabitants ofrelation of, to United States Government: 23. civil rights and political status of native: 24. military government ofdoes not occupy place of sovereignty of Spain: 20. effect of treaty of peace (1898) on: 19 et seq. is representative of sovereignty: 20. purposes of: 26. means of accomplishment: 26. may exercise police power: 28. right of, of civil affairs to issue military orders: 29. mining claims and appurtenant privileges in, report on: 351-373. municipalities, message of President McKinley to Congress: 375. municipalities in, jurisdiction of, over streets: 440, 464. (See Municipalities in Cuba.) municipalitiesright of to contract loans, etc.: 457-463. royal order of June 30, 1880: 457-459. authority and obligations of, as to public works, etc.: 459. rights of under Spanish sovereignty retained upon cession of island to the United States: 460. report on granting of franchises by: 463-471. can not alienate title to land which passed to tile Ulnited States b) terms of treaty of peace with Spain: 465. right of, to acquire real estate: 465. own streets constructed and maintained with municipal fuilds: 466. right of, to alienate its rights to streets: 466. power of, to regulate and control use of streets under Spanish law: 466. authority of, to grant permits for use of streets: 467. laws in force regarding, are Spanish laws in force at date of cession: 467. streets owned by, do not belong to the national public domain: 467. how land and other property owned by, may be alienated: 470. notaries, report on claim of Nava y Lobo for damages: 454. (See Nava y Lobo.) political status and civil rights of inhabitants; 24. public lands and property; power to dispose of rests in (ongress: 353, 623. United States has title as proprietor: 353. tramways, claim of Vicente and Jose Usera regarding concession for construction of: 531-534. what are considered under Spanish law: 531. provisions of Spanish laws, relating to concessions for; 532. proceedings to secure concession for: 532, 533. troops, encampment of, in, report on claims against United States by reason of: 338-350. determination of unliquidated damages requires exercise of judicial powers: 339. United States did not succeed to prerogatives over, inherent to Crown of Spain: 493. War Department divested of jurisdiction over civil affairs of: 351. war material and batteries left by Spain, report on, suggested agreement as to disposition of: 566-571. 1394-03 — 50 786 Porto Rico-Continued. wrecksduty collectible on, brought into Porto Rico, etc., repl)ort:n: l619-621. when duty should be collected: 620. approval of views by Secretary of War: 620. Porto Rico Brewing Company: application for articles of incorporation une(ler laws of Porto Rico: 490. (See Griswold.) Ports: right of Federal Government to blockade, of rebellious States: 211. Lincoln's proclamation declaring, of rebellious States blockaded: 220). open to foreign trade in the Philippines: 232. Portuguese River. (See Gaskill et al.) Possession: rights created by priority of: 500. Postal code for Cuba: provisions of, violate(d by Neely andl Rathbolle: 550. Post-offices: establishment of, in California in 1848: 101. Post routes: act to establish, in California: 101. Powers: functions, and duties of military governments maintained by the lnitcel States in islands ceded by Spain, report on: 11. and rights of sovereign nations, equality of: 68. difference between grant of, and grant of property: 204. military, civil, and judicial, in the Philippines, in whom vested: 233, 240. President can not intrude upon authority of Congress: 22, 35, 279, 36S. establish courts in conquered territory, etc.: 22. may institute temporary government during war: 23, 25. proclamation of, appointing provisional government for Texas: 23:. can not make treaty of peace without concurrence of Senate, etc.: 25. authority of, over conquered territory limited by Constitution: 25. to participate in civil government of Cuba: 34. duty of, to maintain sovereignty in islands ceded by Spain: 49. and Senate can not incorporate foreign territory into IJnited States: 122, 126. confer citizenship: 126. authorized by Congress to increase Regular Army: 215. authority of, to enforce tariff in the Philippines: 218. regulate and control trade with hostile territory: 219, 227. Prisoners of war: provisions of treaty of peace with Spain (1898) regar(ling release of political: 563. (See Idulla Saez, Eulogio.) Privileges, political: created, etc., by political laws: 86. difference from personal rights: 86. Prize cases: courts can not be established by President in co)nquere(l territory to (ecide upon rights of United States in: 22. right of Federal authorities to blocka(le ports of rebel States: 211. Prize courts: determine liability to confiscation of captures at sea: 266. jurisdiction of, does not attach to property seized on land: 266. 787 Prize laws: apply only to captures at sea: 281. provisions of Unitefl States Re-ised Statltes: 560. (See Vessels.) Proclamation of President dleclaring c'lose ()f c(i\il \ar: 17. Property, enemy: confiscation of: 87. (See Confiscation. ) report on confiscation of: 264 et selq. all property within enelny's territory is, an(l sluhject to c,nfiscati(nl': 26"5. how b)elligerent nation nmay dispose of: 266. l)elli-erent not ob)ligedl to, iay for, in track of war::341,:-4:1. righlt of conqueror to levy ( contributions on': 217. stands under llartial law of occlupier, etc(.: 11. (See Property, private. ) Property, neutral: belligerent not requiredi t() pay for (lanages to(, ill track ()f war: 341, 34'3. residence in eneimy's country exposes, to elleiy's risk: 43:. Property, personal: under laws of war title, to, passes withl,)ssessionl: 26;6. Property, private: confiscation ofenemy property, report on: 264. nore easily justifie(d in civil wars: 265. real, may he confiscated b)y occupying.belligerent: '267. right of, derived from laws of wvar: 269. to prevent use of by enemly, is exercise of war lpower: 26)9. not conferred by legislation, but may be regulated by: '269. belonging to an insurgent, is an exercise of municipal lower: 269. lUnited States mnay exercise war powers, etc., while engaged in sullppressing an insurrection: 26)9. on land, when proper: 279. and condlemnation of, under Spanish law::398,:399. mnay be taken for public purposes, under martial law: 14. temporarily seized or occupied( ly belligerent without liability for conlpensation: 345. right to impress Inay be waived and lialbility for comipensation createl: 346. how waiver accomplished, etc.: 346. distinction between, used for government lmirpooes andl (lestroye(l for )pul)lic safety: 346. expropriation of. (See Expropriation; Eminent domain.) no effect produced on, by niilitary occupation: 38(6, 464. confiscation and condemnation of, un(ter Spanish law: 398,:3?99. right to alienate is incident to ownership: 464. capture(l fronm enenmy by United States forces becomles,lllic p)roT)erty of the United States: 622. right of military government of Cuba to expropriate:,360. Property, public: passes fronm one government to the otter witil change of sovereignty: 27. law relating to alienation of, passes asway withl surrendered. sovereignty: 27. right to grant, not vested in lilitary governor: 28. powers vested in Congress by Constitution regard(ing: 67. in Cuba, title to, was vested in the Croswn of Spain: 574, 585. relinquishment of, by Spain: 574, 585. 788 Property, public-Continued. captured from enemy by United States forces becomes United States property: 622. in Hawaii, can be disposed of only 1y Congress: 353. Property, real: laws of war regarding title to: 266. of private ownership, may be confiscated lby occupying belligerent: 267. Property rights: provisions of treaty of peace with Spain, regarding ceded territory: 382, 533. provisions of treaty with Mexico (1848) regarding protection of: 383, 464. Protocol of August 12, 1898: right of Spain to exercise sovereign powers in Cuba after: 584. grant of concessions by Spanish authorities after: 585, 595-603. Provinces (Cuba): rights belonging to peaceful possession of property not impaired: 543. Provisional imprisonment in Cuba: to be counted as part of term of service of sentence: 508. Public domain. (See Public property.) Public offices in Cuba. (See Office; High Sheriff.) Public lands in the Philippines: 233. provisions of Spooner amendment: 233, 240, 604. report on construction to be given to: 604 et seq. (See Forests; Timber.) approval of views contained in, by Secretary of War: 615. Pueblos. (See Municipalities.) i. Railroad: from Manila to 1)agupan, concession for: 17-9. in Cuba, report on right of, to cross highways, etc.: 374-391. need of: 376. reason for not extending: 376. requisites to construct: 376. can not employ right of eminent domain: 377. how right of way over municipal property secured: 377. report on proposed draft of order authorizing organization of companies and construction of: 391. (See Tramways.) Railway Co. v. McGlinn: laws which pass with surrendered sovereignty: 27. Randolph, John: debate in House on Louisiana purchase treaty: 38, 124, 126, 128. selection of, to defend: 78. Rathbone, E. G.: report on question of inserting charge of conspiracy in criminal complaintagainst: 545-554. provisions of penal code for Cula, violated by: 550. postal code violated by: 550. Rebellion: defined: 212. provisions of Spanish penal code: 549. Reconstruction acts: passage of, by Congress: 17, 234, 363. provisions of: 17, 25, 234, 364. refusal of Supreme Court to interfere in enforcement of: 18, 234, 364. 789 Reconstruction acts-Continued. holding of Supreme Court regarding: 18. powers of officer in command in Texas under: 33, 235. legislative and judicial authority conferred by, upon commanders of military districts: 34, 234. Recopilaci6n de Indias: provisions of, regarding public offices: 200. (See High sheriff.) Regular Army: increase of: 215. Regulation: of trade with territory subject to military occupation: 225-228. (See Trade; Philippine Islands.) Reid, Whitelaw: discussion regarding assunption of general State delts: 187. statement regarding Cuban bonds: 187. Philippine debt: 187. explanation of money payment in case of Philippines: 187. Relation of inhabitants of Porto Rico to United States Government: determination of: 23. (See Porto Rico.) Religion: free exercise of, guaranteed Spanish subjects residing inl:ededl islands: 474. Remy, George C.: letter to Secretary of Navy regarding Philippine trade: 322-8323. Repurchase: of offices belonging to the Crown of Spain: 205. Revenue laws of the United States: act to extend, over California: 103, 168, 169. extension of, to North Carolina and Rhode Island: 104, 158. constitutional provisions regarding raising of: 151. bill to raise, to originate in House of Representatives: 151. extension of, to Florida: 162, 165. Louisiana: 160. order of Robert J. Walker regarding application of, in Texas: 165. message of President Taylor regarding collection of, in California: 170. - derived from the islands, not considered United States property: 178, 180, 424. (See Customs.) Revenues of Cuba: funds created by, not the property of thie Unite(l States: 424. are not military contributions: 424. Reversion: of offices to the Crown: 205. Revised Statutes of the United States: provisions of, regarding wrecked or abandoned vessels, etc.: 555. (See Vessels; Wrecks.) Rhode Island: ratification of Federal Constitution by: 77, 104, 158. extension of revenue laws to: 104, 158. laws relating to treason, etc.: 683. Rice: export duty on, in the Philippines: 218. Rights: private, end of civil war as regards: 17. Rights-Continued. civil, of inhabitants of Porto tico, etc., to le deternlinled by C(ogress: 24, 46, 175, 243, 246, 247. and political status, how to be interpreted: 246. enumeration of, in Constitution not to ee construetd to (dey oters: (68. personal, difference from political privileges: 86. and civil, of inhabitants of the Territories: 88. constitutional limitations in favor of: 88. suspended during war: 86. political and prerogative not transferred to succeedinlg nation: 188, 2)0, 359, 389. to be protected by new sovereignty: 189. inchoate, are of imperfect obligation, etc.: 193. belligerent authority of Unite( States to exercise, in dealing with insurrectioo in the Philippines: 211-218. not affected by treaty of peace with Spain: 216. guaranteed subjects of Spain residing in ceded i:lands: 474. individual, treaty to be considered as dated at its ratification as to: 516, 574. Rios, E. Montero: correspondence with NWilliaml. 1)ay regarding treaty of peace withl Spain: 181. Rivers. (See Streams.) Rodney: selection of, to defend Louisiana purchase treaty: 78. debate on Louisiana purchase treaty: 131. Root, Elihu, Secretary of WAar: order to print report of Law Officer, Division of Insular Affairs: 3. reservation of authority to determine questions (iscussed in reports: 4. approval and action on reports: 36, 193, 209, 251, 255, 301, 305, 312, 335, 350, 411, 421, 448, 454, 478, 484, 485, 487, 489, 510, 529, 555, 557, 562, 578, 594, 595, 600-601, 620. (See Secretary of War.) statement regarding insurrection in Philippines: 236. Ross, John M.: trial of, by United States consul-general in Jal)an': 56. Royal cedula: relating to public and salable offices: 200, 201. (See High sheriff. ) Royal prerogatives: xight of officers of Sp)ain to exercise, not vested( in officers of the United States: 28. can not be imparte(l to United States (overnment: 29, 188, 359, 389. Rubber trees: in the Philippines: 608. Russia: treaty with, by which Unlited States acqluired Alaska: 42, 84. proclainmed: 170. S. Saez, Eulogio Idulla. (See Idulla Saez.) Sagardia, Fermin: report on claimi of, for damages occasiole(d by his property being stolen, etc., by robbers: 471-472. Salvage: court of admiralty alone has jurisdiction to try question of: 415. a compensation given by mIaritinme law, etc.: 415. points in controversy in awarding: 415. 791 Salvage-Continue(l. clainls for, not within jurisdiction of W'ar )epartment: 415. liability of personal property of United States for: 416. l'roperty of United States not liable for: 416. rights of seamen: 416. purpose in giving: 416. (See American Mail Steamship Company. ) Samoan Islands: rights of United States in: 59. treaty with government of: 60. consular courts in: 59. Sam Wing: rep)ort on application of, for order to procee(l to Iloilo to enlgage ill l1isiness a a merchant: 482-484. action of Secretary of \Var: 484. Sancti Spiritus, Cuba: contract for a market house 'at, andl rigllts of l'rimnitiv, (G;utierrez thlereuilntder: 534-541. indebtedness of in unicipality of, to Pri-nitivo (4utierrez: 53:4. terms of contract to erect market house at: 534. refusal of mlunicipal authorities of, to carry out terms of (citract: 535. claim of Gutierrez for d(amnages: 535. sustaine(I by Spanish minister at \ashlington: 536. ordler suspending contract: 536. refusal of authorities of, to assist Gutierrez to, (erive )enllefits (claill((i Iiuller contract: 53)6. right of authorities to refuse to coimply with contract: 53X6. reasons for refusal: 536. rescission of ordler of suspension: 537. order closing courts of Cuba to suits against municipalities: 537. provisions of contract void from their inception: 539. lproposal to convey market house to muinicipality: 540. determnination of Secretary of AW'ar: 541. Sandwich Islands. (See Hawaiian Islands. ) San Francisco: grant to, of right, etc., of United States to beach1 ant water lots by (;.en. N. Kearney: 28, 359, 390, 492. validity of grant of pueblo lands: 383, 384. Sanger, Winm. Cary: transmits to Secretary of State report on right of Spain to accept renewal of allegiance, etc., and agrees with views contained( tlerein: 177. action on request of military governor of Cul)a for release of Idllla Saez: 566. (See Idulla Saez. ) approval of views set forth in report on seizure of Spanish fuinds at Maanila: 624-625. San Juan, The: report on claim of Sobrinos (le Herrera for dallnaaes oi account of seizure of, in Santiago: 615-619. (letention of, by blockade: 615. seizure by United States authorities: 615. release of: 616. clairums which can be adjusted and paid by W'ar Department: 616. seizure of, justified as a legitimate exercise of belligerent riglt: 617. rene(ldy open to claimants: 617. 792 San Juan, The-Continued. contention of claimants as to seizure: 618. War Department without jurisdiction to consider: 619. San Juan and Rio Piedras Tramway: report on application of purchasers of, for confirmation of sale, etc.: 432-448. grant to Pablo Ubarri to build: 432. sale of grant: 432. question of approving transfer: 433. privileges desired upon completion of transfer: 434-436. report of General Davis on: 435. General Brooke on: 435. course of: 435. change of motive power: 436-437. change of gauge of tramway: 438-439. report of General Davis on: 438. extension of, on certain streets in San Juan: 439-446. report of General Davis on: 439. provisions of concession to: 443. authority to exercise right of eminent domain: 443. approved project: 444. construction and operation of spur at harbor front at San Juan: 446. harbor front at San Juan the property of the United States: 446. Secretary of War may issue revocable license for: 446. opinion of General Davis on: 446. construction and operation of branch line, etc.: 446. necessity to cross military road: 446. Secretary of War may grant revocable license for: 446. opinion of General Davis on: 446. purchase from United States of site for electric plant: 446. right of Secretary of War to lease, but not sell property belonging to the United States in Porto Rico: 446. report of General Davis on application: 447. action of Secretary of War on application of: 448. San Juan Light and Transit Company: purposes of: 434. (See San Juan and Rio Piedras Railway.) application of, to install system of electric lighting in San Juan: 447. report of General Davis on: 447. Santo Domingo: proffer of, rejected by Congress: 38. Secretary of the Treasury: correspondence with Secretary of War regarding disposition of the wreck of the Alfonso XII: 557. (See Vessels. ) Secretary of War: military governors subject to direction of: 28. has no authority to adjust, etc., claims for unliquidated damages: 347, 348. right of, to determine amount of quantumn meruit when contract implied: 348. approval and action on reports: 36, 193,209, 251,255,301, 305,312, 335, 350, 411, 421, 448, 454, 478, 484, 485, 487, 489, 510, 529, 555, 557, 562, 578, 594, 595, 600-601, 620. Sedition: provisions of Spanish penal code regarding: 549. (See Treason.) 793 Seizure of property. (See Confiscation; Captures.) Senate: ratification of treaty by, creates a contract: 38. action on commercial convention of 1815 with Great Britain: 39. resolution regarding intentions of United States as to inhabitants, etc., of the Philippines: 47. and President can not incorporate foreign territory ilnto 'lnited States: 122, 126. confer citizenship: 126. debate between Calhoun and Webster on extension of (Constitution over newly acquired territory: 140 et seq. Sentences: commutation of, by courts of Cuba imposed upon persons serving the same in territory subject to Spanish sovereignty: 507-510. Sewers and pavements in Habana: opinion of Attorney-General regarding concessio to Da l! & C(,o.: 359, 389, 408, 536. Sheriff, high, of Habana. (See High sheriff.) Shipwrecks. (See Wrecks.) Siam: consular courts in: 59. Slaughterhouse in Habana. (See Buena Vista, Countess of; Duplessis; High sheriff.) Slavery: Congressional act directed against: 55. constitutional provision regarding: 64. passage of fugitive slave act: 74. power of Congress to legislate regarding: 74. prohibited in Northwest territory: 76. Sloan, Representative: debate in House on Louisiana: 133. Smith, Bell & Co.: report on order of General (tis requiring, to turn over to American authorities money held as property of insurgent forces: 261. application for relief to British Government: 261. legality of action of United States in seizing funds: 262. owes recognition to sovereignty of United States in Phililpines: 263. Snow v. The United States: government of territories of the United States: 62, 107. government of organized territories: 89. Sobrinos de Herrera. (See Herrera.) South American colonies: obligations of Spanish Government assumed bly: 188. South Carolinr: cession of unoccupied land to Federal Government: 123. inhabitants of, declared in state of insurrection: 253. laws relating to treason, etc.: 685. Sovereign: must enforce laws of his State: 188. Sovereign nation. (See Nation.) Sovereign powers: existence of, before the formation of nation: 67. distribution of: 67. Sovereign rights: exercise of, regulated by Congressional legislation: 55. 794 Sovereignty of the United States: over Porto Rico: 19. represented by government formed by President for conqueredl territory: 25. change of, as it affects public and private property: 27. Congress may prescribe manner of asserting: 34, 55. in islands ceded by Spain, duty of President to maintain: 49. not confined within territorial boundaries: 53, 80. over land acquired in a foreign country: 53. follows the flag: 54. assertion of, is a political question: 56. attaches to territory without its territorial }ouln(laries: 64. a territory is not a distinct: 108. powers of, exercised by the legislature of a State: 108. is vested in the people: 151. division of territory under: 172. defined: 189. rights to be protected by new: 189. police power one of the highest powers of: 201. can not divest itself of: 201. delegate it: 201. of ce(led territory not burdened with personal contracts, etc.: 206. engaged in suppressing insurrection, may exercise rights of belligerent: 212. over Philippines, position taken by American Commission regardling: 247. may create and maintain military governments: 370. (See United States.) Spain: King of, can not impart royal prerogatives to United States: 29, 188, 359, 390. relinquishment of sovereignty over Cuba, etc.: 46. treaty of peace with the United States (1898)rights of military authorities after celebration of, report on: 16l et seq. effect of, upon character of military government in Porto Rico, Cuba, and the Philippines: 19 et seq. comparison with other treaties: 41. purposes of: 45. cessions of Porto Rico, Philippines, and (iuan: 46. meaning of cession as used in: 46. effect of: 47. confirmation of, the consummation of a war: 47. provisions of, relating to Spanish subjects: 118. correspondence regarding provisions of: 181. intention of article 8: 206. provisions as to property and rights destroyed during war: 206. of, regarding clainms for indemnity, etc.: 342. regarding property rights in Cuba: 382. rights guaranteed Spanish subjects in islands ceded by: 474. final character of judgments rendered by courts in Cuba: 486, 488. provisions regarding release of political prisoners of war: 563. treaty with the United States of 1819 -ratification of, by Senate: 44. provisions of: 162. regarding grants of land made by King of Spain: 518. purpose and intent of: 518. regarding rights belonging to the peaceful possession of property: 543. right of, to accept renewal of allegiance, etc.: 173. Cuban bonds issued by: 192. 795 Spain-Continued. exercise of sovereign rights in Cuba, by, after protocol of August, 1898: 584. claim of Ponce board of harbor works against: 484, 485. (See Harbor works.) suggestion of minister of, as to agreement for dispositionl of war material, etc., left in Cuba and Porto Rico: 566-571. relinquishment of public property in Cuba: 574, 585. title to public property in Cuba vested in Crow-n of: 574, 5S5. citizenshiplaw of, regarding: 173. provisions of civil code: 174. rights guaranteed to citizens of, residing in ceded islands: 474. legal standing of, in courts of Cuba: 476. jurisdiction of Cuban courts over estates of deceased: 476. desertion from military service of, provisions of code of military justice: 563, 564 -566. (See Idulla Saez.) liabilities oflTnited States not responsille for payment of, incurred by: 180. incurred in the Philippines, did not pass with sovereignty: 328. Manila Railway Company. (See Manila Railway Company.) right of, to control means of distributing telegraph messages received over cables in Spanish territory: 288. right of, to construct government telegraphl lines in Cuba: 289. wrecks, provisions of law regarding: 561. (See Wrecks.) Spanish-American war: ownershilp, etc., of vessels sunk in coastal waters of (Cua by Inited States naval forces: 555-562. (See Vessels.) Spanish Commission at Paris (1898): contention of, regarding assumption of contract obligations: 183. Cuban bonds issued by Spain: 192. Spanish Officeholders in Cuba: authority of ceased with withdrawal of Spanish sovereignty: 197 et seq. right to office not protected by treaty of peace: 206. provisions of Recopilaci6n de Indias: 200. became f(nchtu officio upon establishment of military occupation: 201. public offices are not property: 203. power of disposal of public offices retained by Crown of Spain: 203. rights of administration held by purchaser: 203. incumbency subject to the Royal will: 203. termination of incumbency not an exercise of tlhe right of eminent domain: 204. (See High sheriff.) Spooner amendment: provisions of: 233, 240. report on construction to be given to: 604. approval of views contained in, by Secretary of War: 615. (See Philippine Islands.) Squatter sovereignty: is discredited, etc.: 107. States: rebelliousdivision of, into military districts by reconstruction acts: 17, 364. reasons for military government in: 18, 364. 796 States-Continued. rebellious-Continued. civil governments in, inimical to the Union: 18. right of Federal authorities to blockade ports of: 211. proclamation declaring blockade of ports of: 220. commerce with: 220. Lincoln's proclamation, declaring certain, in a state of insurrection: 220. governments, formation ot, in Louisiana, Arkansas, and Tennessee: 24. admission into the Union: 91. powers of sovereignty exercised by Congress in legislating for: 107. new, formed by separation, liability for debts, etc., of parent State: 190. Lincoln's proclamation declaring certain, in a state of insurrection: 220. at war, business intercourse between citizens of, unlawful: 221. right of, to impose export and import duties under confederation: 237. situation in rebel, described by Birkhimer: 18, 365. Statutes possess no innate power of expansion: 80. St. Augustine: advantages granted by treaty with Spain to: 162. Stotsenburg, Col. John M.: report on engagement between United States troops and insurgents in the Philippines: 214. Streams: beds of, in Porto Rico, etc., the property of the Crown: 496. all navigable rivers within public lands are public highways: 498. fresh water, not a common passage, private property: 499. Streets and highways: in Cubareport on right of municipalities to grant permission to railroad companies to cross: 374-391. owned by municipalities: 378. right of municipalities to alienate rights to: 378. regulate and control use of: 378. grant permits for use of: 378. provisions of general law of public works: 379. regulations for its execution: 380. law of railroads: 380. regulations for execution of: 380. land dedicated to public use as, is public property: 382. in Porto Rico, jurisdiction of municipalities over: 440. constructed and maintained with municipal funds, are property of municipalities: 466. Subjects of Spain: rights guaranteed, residing in cededl islands: 474. legal standing in courts of Cuba: 476. jurisdiction over estates of deceased, in Cuba: 476. (See Citizenship; Allegiance; Aliens.) Submarine cables: international convention for protection of: 287. (See Cuba, cables.) Subvention guaranteed to Manila Railway Company by Spain: 179, 186. (See Manila Railway Company; Manila and Dagupan Railway.) Sugar: export duty on, in the Philippines: 218. Sulu Islands: administration of: 231. 797 Sulu Islands-Continued. complaint of owner of the Will o' the Wisp regarding trade restrictions: 302-305. treaties respecting trade of former sovereignty ceased with transfer of: 302, 303. sovereignty of United States in, not encumbered by personal contracts of Spain with inhabitants of: 304. complaint of German Amlbassa(dir regardill trade restri(tions with, report on: 316-338. note of (;erman Ambassador to) State Department: '317-31 S. Ipropositions advanced by: 318-319. submitted to War Department for examination, etc.: 319. prohibition to trade with: 303, 322. suspension of import duties: 324. reestablishment of trade with: 325. subject to military occupation: 325, 335, 337. grant of Spain giving right of trade with, to Great.Britain, etc.:,326. recognition of Spanish sovereignty over: 326, 327. right of military governmnent to regulate trade with::332. opinion of General Otis regarding trade with: 333. sovereignty of United States over, complete, and exclusive: 317, 328. regulation of trade lIy military government adopted as w-ar mleasure: 332. Supreme Court: opinion respecting continuance of military governlllellt in ( alifor'lia after declaration of peace: 16. refusal of, to interfere with enforcement of reconstruction acts: IS. holding of, regarding reconstruction acts: 1S. opinion of, regarding effect of action of political branch regarding territory: 47. T. Taft, Wm. H.: appointment as civil gotvernor of tlie l'llilil)ppies: 230. inauguration of: 231. cablegram on high price of luml)er in the l'hilippines: 604. Philippine Commission, report on timlber in the Philippines: 605. (See Philippine Islands.) Tampico, Mexico: regulation of trade with, while under military occupation: 45, 225, 303, 325. a part of the United States, but not of the lnion: 244, 247. (See Fleming v. Page.) Taney, Roger B., Chief Justice: opinion in )red Scott case: 82. Tariff: enforcement of United States in California: 103. laws in territory subject to jurisdiction of but beyond(l nited States: 158. in Louisiana: 159 et seq. in the Philippines: 217. Taxation: power of, is a sovereign right of government: 91. Taxes: power of Congress to impose: 91, 92, 237. apportionment of: 92. capitation or direct: 92. right to impose, on District of Columbliia: 91. collection of, in Louisiana: 159. internal revenue, first levied: 171. direct, provisions of Constitution for: 171,172. 798 Taxes-Continued. uniformity of, throughout the United States: 92, 237. constitutional provisions regarding: 91, 92, 171, 172, 237, 239. Taylor, President: message regarding collection of revenues in California: 170). Telegraph: right of Spanish government to construct government, in Cuba: 289. control means of distributing messages received over cables in Spanish territory: 288. (See Cuba.) Tennessee: formation of State government in: 24, 244. refusal of Congress to recognize State gevernmlent: 24, 244. inhabitants of, declared in a state of insurrection: 253. monopolies prohibited in: 296. laws relating to treason, etc.: 686. Territorial boundaries of United States: do not advance with successful armies, etc.: 37. not referred to in treaty of peace with Spain: 46. (lo not follow the flag: 54. Territories of the United States: extension of Constitution to: 84. powers of Congress over: 85, 107. government of organized: 89. people of, (1o not constitute sovereign power: 62-89. Constitution not made for, but for States: 99. powers of sovereignty exercised by Congress in legislating for: 107. provisions of Constitution relating to trial by jury apply to: 110. Territory: occupied by an enemy stands under martial law of occupier, etc.: 11. of islands acquired by United States during war with Spain, report on legal status of: 37. unoccupied, claimed by States: 40. transfer of, to General Government by New York and Georgia: 40. North Carolina: 40. opinion of Supreme Court regarding action of political branch: 47. cession of, may be demanded as a condition of peace: 48. enemies', is lawful prize of war: 48. of islands ceded by Spain, treated as beyond territorial boundaries of the United States: 49. methods of acquisition: 51. appertaining to, but beyond boundaries of Unite(l States; power of Congress to legislate for: 50, 57, 61. powers of Congress regarding, belonging to the United States: 25, 63-, 66, 89, 245. acquisition and government of new, by the United States: 66. new, may be acquired and governed by the United States, etc.: 66. government of, acquired and held by United States belongs to Congress: 66, 94. appurtenant, list of: 52. Northwest. (See Northwest Territory.) distinction between, and inhabitants: 80. can be acquired by the United States only for conversion into States: 81. unorganized, of the United States not bound, etc., by Constitution and laws of, etc.: 89. organized, what is meant by: 90. extension of Constitution to: 90, 140. 799 Territory-Continued. right to acquire, incidental to treaty-making power: 94. power of Government of United States to acquire, by conquest or treaty: 94, 108. acquisition of, confirmed by cession by treaty: 94. is not a distinct sovereignty: 108. has no independent powers: 108. is a political community organize(d by Congress: 108. commlon law did not continue in force in, ac(luire(l by United States in war with Spain: 110. commlon law can not be enforced in, acquire(d by Unite(l States without Congressional action: 110. declarations that Constitution, etc., does not extendl ex proprio vigore over newly acquired: 140. Congress alone colmpetent to extend Constitution over newly acquired: 140. debate between Calhoun and Webster on extension of Constitution to newly acquired: 140 et seq. assent of sovereign necessary to complete cession of: 151. participation of House of Representatives in accepting cession of: 151. belonging to the United States, rights in relation to government of, must be conferred or granted by Congress: 169. diviision of, under the sovereignty of the United States: 172. ce(led, sovereignty of, not burdened with personal contracts, etc.: 206. military occupation of, creates obligation to provide for administration of civil affairs: 216. hostile, authority of President to regulate an(l control trade with: 219. exercise of war powers in: 227. subject to military occupation, regulation of trade with: 225. opinion of Brewer, J., regarding: 108. (See Acquisition of Territory. ) Texas: duration of military government established by reconstruction acts: 18, 235, 365. amendment of constitution of: 18, 235, 365. provisions of reconstruction act regarding government of: 18, 235, 365. appointment of governor and provisional governor: 19, 23, 235, 365. teeclaration of resumption of practical relations to General Governmlent: 18, 235, 365. assembly of constitutional convention: 23, 235, 365. powers exercised by officer in command, under reconstruction acts: 33, 235, 365. incorporation of, as a State: 38. Congressional resolution for annexation of: 165. order of Robert J. Walker regarding revenue laws: 165. extension of all laws over, and admission into Union: 166. creation by Congress of collection district elnbracing: 166. message of President Polk with regard to annexation of: 168. liability of United States for debts of: 190. inhabitants of, declared in a state of insurrection: 253. Texas v. White: authority to provide for restoration of State governments when subverted and overthrown: 22. Thompson v. Utah: right of trial by jury in Territories: 110. Timber in the Philippines: 233. provisions of Spooner amendment: 233, 240, 604. construction to be given to, report on. 604 et seq. purpose of, is to protect proprietary right of United States to forests: 614. approval by Secretary of War of vie-ws contained in: 615. 800 Title: of United States to California and New Mexico perfected by conquest: 41. to the soil; meaning of, as used in connection with treaty with Russia, 1867: 42. by conquest; how acquired and maintained: 87. Titles to property: right to confirm, not vested in military governor: 28. Tobacco: export duties on, in the Philippines: 218. Tonga: consular courts in: 59. Tonnage: laws regulating duties on, extended to Louisiana: 160. Torre Pla Concession for street railway in Habana: opinion of Attorney-General: 589. Townsend v. Greeley: right of municipalities to alienate lands after change of sovereignty: 384, 469. Tracy, Senator: debate on Louisiana-purchase treaty: 129. Trade: authority of President to control and regulate, in hostile territory: 219, 227. illegality of, with public enemies: 221. power of United States Government to perinit limited intercourse with enellmy in time of war: 222. right to regulate, with territory subject to military occupation: 225, 303, 325. of military occupier to regulate, with districts subject to his occupation: 227. regulation of, an incident of military government: 225, 302, 325, 338. permission of foreign nations to, an act of grace on part of sovereignty: 304, 327. sovereignty of United States not encumbered by Spanish personal contracts regarding: 304. with Sulu Islands. (See Sulu Islands.) treaties, suspended in the presence of war: 331. right of Congress to regulate and control, in time of peace: 332. Birkhimer on regulation of: 225, 302, 325, 338. treaties of commerce not binding upon new states formed by separation: 190, 303, 327,639. with rebel states: 220, 253. in the Philippinesright of Government to regulate, report on: 210-254. authorized with certain parts of: 222. unlawful: 222. ports open to foreign: 232. right of United States to regulate, with: 241-251. prohibition to trade with: 303, 322. Trade marks: in Cuba and the Philippines, report on protection of: 305-315. countries constituting international union for protection of industrial property: 306. agreement concerning international registration of: 306, 313. Spanish order of 1873 regarding: 307. law of 1884 regulating property rights to: 307. royal order of 1888 regulating use of: 307. protection afforded by Spain to: 308. infringement of rights secured by registration of, a criminal offense: 308. 801 Trade marks —('ontinlue(. protectio1n of reristered, in Berne prior to occupation of Philippines: 3'08. considlered as 1)roperty il thle Unite1d States: 309. owner of, i Spi, how protected: 310. registration necessary in order to have protection: 310. Insular Division, \\Wr I)epartinent, circular regarding: 310. interpretation of: 311. Inumnber of, registered( in international registry at Berne: 311. 1mode of registration in Cuba, Porto Rico, and the Philippines::12. Tramways in I'orto Rico: claiml of Vicente and Jose I'sera regardillg allegeld (,lncession for (construcltion of: 531-534. what are considered, under Spanish law: 531. provisions of Spanish law concerning concessions for: 532. Transvaal Concessions Commissions: extracts from report of: 530. Treason: person (uilty of, may be summarily executed un(der mlartial rule: 15. defined in Penal Code of Spain: 548. act of 'Philippine Conmmission definin lsedition, ctc.: 655 et seq. compared with U...Revisied Statutes: 658-663, 664, 666, 669. laws of Florida: 665. Kansas: 665. MIarylandl: 665, 667. New Jersey: 667. Tennessee: 663. Virginia: 668. West Virginia: 665. laws relating to, ofAlabamla: 671. Arizona: 671. Arkansas: 672. California: 672. Connecticut: 672. Delaware: 672. Florida: 673. (eorgia: 673. Illinois: 673. Indiana: 674. Indian Territory: 674. Iowa: 674. Kansas: 675. Louisiana: 675. Maine: 676. Maryland: 676. AMassachusetts: 678. Michigan: 678. Minnesota: 678. Mississippi: 679. Montana: 679. Nebraska: 679. New lamnpshire: 679. New Jersey: 680. New York: 681. 1394-03 51 802 Treason-Continued. lawvs relating to, of-Continued. North D)akota: 681. Ohio: 682. Oregyon: 682. 1Penns-lvaniia: 682. Rh~ode Island: 683. Southt Carolina: 685. Teiinies~see: 686. Vernmont: 687. Virginia: 6871. WVest Virginia: 688. W'isconsin: (388. Treaty: constitutional power of King to make: 25. can not be made by President of United States withiout concurrence of two-thfirds of Senate: 25. provisions of, bindinga uponl military governi ent: 218. ratification of, creates a. contract: 38. miaking power, (conferred by Constitution onl Government. (.f the Union: 94. acqluisition of territory by: 94, 168. making power can not declare -sovereign will of the iceople: 151. constitutional provisions regarding: 102, 167. making l~ower has iiot authiority to fix relations of cededl islands an)(l their inhabitants with Federal Governmnent: 243, 251-. interpretation of, to be (letermninedl by p~olitical branchl: 248. of alliance, gniarantv, and commlerce not binding iulan new State formled by separation. 190, 303, 327. to be consi(lhredl as dated at its ratification, as, to) indlividual rights: 516, 574. a law of thie land, etc.: 517. thie suprwem-e law of the land: 517. should be liberally construed:;51 7. with France. (See Louisiana purchase treaty.) with Great Britain of 17-94: 39. 1818, provisions and inlterp~retationi of: 30. 1 783, p-rovisions of: 3299. Louisiana l)uirclhasedebate onl: 34, 124-128, 129, 130. p~rovisions of 41, 77, 83. bow imade effective: 43. assailedl as an act of imnlwrialism: 122. ratification of ly Senate: 124. assailed as being unconstitutional: 124. formulation, approval, amid. ratification of: 159. provisions of, regarding inhabitants of cedled territory: 24:3. status of ceded territory to Federal (Jo(verminnent: 243. trade: 332. with MAexico, 1848: 41, 83, 96, 101, 166. necessity of imilitary~ government in _New Mexico aiidl Califormiia: 16. p~rovisions regarding p~rotection of I)rolperty rights,: 383, 464. how madle effectiv'e 44. proclamation of: 101. mnessage of President Polk notifying ratification of: 168, 1,853. acquiring territory kmiown as Gadsden purclhase: 42. 803 Treaty-Continuedj. acqjuisition of A laska by: 42, 84. proclamation of: 170. with Spain of p~eace, 1898 -righits of military authorities after celebration. of, report on: 10 et seq. effect of upon character (1f military government in P~orto Rico, C'uba, and the Philippines: It) et seq. coinparison -with other t reatie~s: 4 1 purposes of: 45. cess'i us ( f IPor)to Rico, 1 Philippiones, and (Gnanm: 46. mmmeaning of cesFsion as ms~e( in: 46. effect of: 47. confirmation of, the consummnationi of a wvar: 47. prov-isions of relating to Spanish silhjects: 1 18. corresponicunce regardingprovisions of: IS81 intention of article 5: 206. provisions as to lproperty andI rights destrovwd( bmlriiig war: 2,106. o)f regarling claimms for indlemnnity, etc.::342. reg~arding property rights, in. Cuha: 382. rights guaranteedI ~Spanish sub)jects in islands ceded by: 474. final cha,,racter o)f jud~gmnents rend1eredl by courts hin (nba: 486, 488. provisions regardingr release of Imolitical pmrisoners of war: '568'. w-ith S',pain o)f 1819 -ratification of, by Senate: 44. pro'visions ( f: 1602. reg-arling grants4 of land made by K im, () Sl~ain: 518. purpose andl intent (f: 518. regrarding, rights 1 clongring to the peacefuml pos~session of jw qerty: 543. Trial by jury: is me t a right 1 nt, a means, ( mf securing a rig'ht: 1 10. is aii essential part of the connnon law: I1 0. isg inot an essential lart o)f c-ivil law\: 1 10. guaranty of, dlates.! back to 'Magnla ('harta: 1 10. right to, in suits at commono law, applies to Territories: 110. iii Itahi: 110, 111. in the Iistrict of Columbia: '112. right of, is an acquiredl right: I1:1:. acqluiredl by and through the Constitution: 11:8. in Territorie-sTh-om-pson -\v. Vtah: 11 0. Webster v. Reid: 11 1. Rleynolds v. LI'nited States: IlIl. American Publishing Co. v. ]Fisher: '1ll. Springv-ille v. Thomias: 112. Callan v. Wilson: 112. Walker v-. Savimunt: 1 14. Trist, H. R.: amppointmenet as (collector at -New Orleans: 1-59. instructions fromi Giallating regardling taxes,: (te.: 1s59. Troops, encampment of: clainis against Unmited States., by reason of, imi Porto Rico, Cuba, hlawaii, and Philippines, report omi 8838-3150. (letermmi mation of unliquidatemi (amnages requires exercise of jumidicial powers: 3839. 804 Trujillo, Antonio Maria: engaged in inisurrection in -NewN Mlexico, (ase of: 272, 502. ref usal of IPresident to exercise power to p~ardon: 274, 504. Turkey: conisular courts ini: 59. Ubarri, Pablo: granit of Crow-n of Spaini to buildI trami-way froumi San Juani to Rfio 1'iedlras, 1~orto R ic o: 4 32. United Railways of the Habana and Regla Warehouses: relport on contract with Cuban an(l Pan-Aukinericani JExlre!ss Companiy: 511-513. annulment of, by) General WNood: 511. objections urged against, by Cubani authorities: 51 1. provisions- of contract: 512. validity sustained by Cuban Governmnent: 513). United States: sovereignty and jurisdiction of, over P~ort() Rico 19. ill un11lisl-ute(I possession of I'orto I-'ico: 20. (couistitiutional obligationi of, to guaranitee States, relpullicaii government: 22. Federal Goverinmenit of: (leriv-ation of its~ powNNers: 29. can not receive or exercis~e royal pirerogatives: 29. (See Sovereignty, Treaty.) territorial b)ounidaries of, dJo not advance w6it successful arinuiecs, etc.: 317. (lerivatioui of right to acqluire territory::37. howv opportunity to extend boundaries of, may 1be afforded Conigress~: 38. title of, to California and -NewN MNexico perfected lby con(Iluest: 41. acquisition by, of territory knjown as (Aadsden plurchase: 42. Alaska: 42. how extension of bound~aries of, to haw\aiian Islands accolnllishied: 42. territorial bound~aries of, niot referred to ini treaty of peace with Spain: 413. may extendi boundlaries by coniquest or treaty: 48. may acquire rig~hts5 outside lboun(Jaries of its- territory: 53. soverei(~nt\v of, fol)low\sthflia,r: 154. territorial lbouniaries (of, (10 not. folb()NN thie flag,: 54. boundaries of, il-ay le extenide( by (longress to include islamls: 54. as a sovereign nation ii-ay acqluire anid govern new territory: 66. government of territory held by, belongs to Cong-ress, etc.: 66. is a national government: 69. c-au acquire territory only for conversion into States: St. Gjovernment limitation of powers of: 56'. what is meant by: 91. may acquire territory iby conquest or treaty: 94. division of territory undler the sovereignty of: 172. rights of, respecting allegiance of inhabitants of islands affected by treaty' w\ith Spaimi of 1898: 173. not liable for paymient, of liabilities incurredI by Spain, etc.: 180. refusal of, to assume obligations of M1anilia and( Dagupani Railroad concession: 182. can not exercise righits anld pIrivileges of sovereign of a monarchy: 1.88, 245. liability of, for debts of Texas: 190. refusal of, to assume financial obligations of Sp~ain inl Cuba: 208. authority of, to exercise lbelligerent rights inl dealing withi insurrection ini the Philippines: 211-218. not affected by treatN of peace withi Spain: 216. power of Government Qf, to permit limiited intercourse wNithi enemy: 222. while holding country as territory h ave powers of national and mnunicillal government: 239. 805 United States-Continuedl. hiOw national authority of, exerciscel in the Philippines: 2839. righ t. of, to regulat~e tradle wiith Ph ilipp~ines, not.O cotr(olied by Constitutional limitation~s: 241-251. 1powNers of Congress regarding territory belonging to: 2,5, (33, (36, 89, 245. Sov-eregl nty of, ov"er Philippines, position taken by- Amierican Comimis:sion re-ar(1 -1110: 247. treatyv-ina-kimg p~owier of, is wvNithout authority to estab~lishl relations of Fe(leral (Governinent to territory, etc., acquiredl by conqnest: 24:3, 25k. act of Phiipp~jine Comniiiission to prev-ent dliscriimination aga4finst mioney% of: 255. banks and( banking iii, subject to legislative regulations: 258. legality of action of, in seizing Philipp~ine-insurgeiit fuInds: 262. policy- of, in the Philip~pines: 13:3* not responsib~le for un lawNfuil acts of indlividual sol( hers-:.343. wNhile exercising rights of belliuerent mnay temnporarily seize an111l occupy private prop~erty w\ithiout liability foi conmpensation: 345. right to imnil)res-s maly be w~ai-edl andI liability for compqenisa-tionj created: 346. howv wNaiver accompjlished::346. citizenship, how acquired: 11.9. civil wiar. (See American civil war.) boun(laries (l0 not advNammce with,succesisful armnies, etc.: 41. filshery- dispu)tte wiith Great Blritain::329. (See Treaty.) United States and Haiti Telegraph Company: cable operatedl by: 282. linies of, op)erate(d in conjunction with Frenich Cable ( omnpanvl: 2982. United States N. Arredondo: e-ffect of action of political b)ranch regar(limlg territory: 471 2p49. validity~ of granlts Inadle by; prev-ious soverei-n in territory acquiiredI byN the UTnited States: 575. United States v\. Gratiot: aefu pisition. andl gov-ernml1ent, of newv territory by the United] States: 66. United States v\. Nelson: I)o\\-e of Congress in legislating, for Alaska: (SS. United States v. The James G. Swan: assertion of the s~ov\ereignity an(l jur-is(liction of tm Unlited States: 56. Unoccupied lands: transfer of, by States to Federal (ioverninent: 123. incorjporation Of, into piublic (lomnain beloniging, to Fe(leral (Gov-erniniient: 12:3. Usera, Vicente and Jose: report on claimii of, relating to (onicessions for traimway, fromt Ponce to IBarrio (le la Marinia: 5:31-534. proceedings had, not sufficient, to create compnjleted grant or conces,,sion: 531 et seq. (S;ee Tramways.) Utah: extension of U'nited States Constitution, etc., to: 90, 111. righit of accused to trial by jury in: 111. Valdez, Ramon: ajpplication for license to utilize water powver in (ommmerio, P. R., report on: 49.5-. 500. issue of rev-ocalble license to: 500. opinion of Attorney-General: 640. 806 Varnum, Representative: debate on Louisiana: 132. Vermont: ratification of Federal Constitution 1b: 77. trade with Canada: 158. laws relating to treason, etc.: 687. Vessels: Spanish law regarding damages to, in collisions: 527. (See Cagigas, Jos. ) determination of administrative policy of Cuba: 529. ownership of, slunk in Cuban coastal waters by United States naval forces: 555 et seq. Navy Department has no authority to preserve, etc.: 556. duty of Secretary of W1ar to remove sunken vessels: 556. request of military governor of Cuba for decision as to lisposition of: 556. proceedings had in the case of the Alfonso XII: 556 et seq. action on application for purchase of: 556. letter from Secretary of the Treasury to Secretary of War: 557. War to Secretary of the Treasury: 557. Colonel Edwards to military governor of Cuba: 557. application of A. Lotinga to State Department for purchase of: 558. advisability of dealing with, as nuisances: 561. instructions to military government of Cuba: 562. provisions of Revised Statutes regarding prize of war: 560. captured at sea as prize of war must be brought within jurisdiction of prize court: 559 et seq. provisions of Spanishl code of commerce regarding wrecks: 561. civil I)rocedure: 561. Vice Consuls. (See Consuls.) Villalon, Jose R.: secretary of public works in Cuba; opinion on validity of concession for canalization of Mlatadero River: 588. (See Matadero River:) Viondi, M. F.: report on protest of, against order regarding contentcioso-a(lninistrativo) p)roceedings in Cuba: 514-518. (See Contencioso administrativo.) Virginia: cession of unoccupied lands to Federal (iovernlment: 12,. inhabitants of, declared in a state of insurrection: 253. laws relating to treason, etc.: 687. Visayan group: administration of: 231. W. Waite, Ch. J.: opinion of, regarding United States territory: 107. Walker, R. J.: Secretary of the Treasury; circular regarding imposition of duties in California: 103, 167. War:. civil, end of, as regards private rights: 17. public matters: 17. constitutional provisions regarding: 25, 63, 622. declaration of the existence of, between the United States and Spain: 32, 362. power to declare, vested in Congress: 35, 63, 82, 278. 807 War-Continued. declared by Congress, not waged for conquest, etc.: 48. lautho(rity to engage ill, vested il United States Governmlent: 64, 94. captures in, vest prilmarily in the sovereign: 108. originating in insurrection, never formnally declared': 211. a condition, not an act of legislature: 211. the state in which a nation prosecutes its rights by force: 211. plarties belligerent in public, are independent nations: 211. civil, (defined: 212. condition of, illegality of tra(le with public enemies: 221. power of United States Government to permit limlite(l intercourse with enemy in time of: 222. powers, rights of 1nite(l States to exercise in hostile territory: 227. exercise of, by Congress: 233. not waged by Congress, but by Commlander in C'hief: 278, 368. susp)ends treaties: 331. War Department: tlas no authority to settle claims for unliquidated damnages: 343, 409. tlivested of jurisdiction over civil affairs of Porto Rico: 351. claills w\ich can be adjusted and paid by: 616. War material: left )by Spain in Cuba anIl Porto Rico, report on suggested agreement for dispositioll ()f: 566-571. failure of evacuation colmmissions to agree as to disposal of: 567. in the P'hilippines and (Guam, agreement as to: 567. Webster, Daniel: discussion of condition of Florida: 93. debate in Congress with Calhoun on extension of C()onstitution to Upper (alifornia, etc.: 96 et seq. debate in Senate with Calhoun oin extension of Constitution to newly acquired territory: 140 et seq. Western Railway of Habana: report on application of, to exercise certain rights: 630-646. concession for railway fronm Iabana to Pinar del Rio: 630. extension to (Guane: 631. questions presented by application: 632. provisions of concession: 632-633, 641. West Virginia: laws relating to treason, etc.: 688. Wharton's International Digest: quoted: 59. cited: 343, 344. Wheaton on International Law: cited: 51. Whedon, Lieut. Burt D.: report of assault by insurgents: 213. Williams v. Suffolk Insurance Co.: determination of national boundaries: 249. Will-o'-the-Wisp: complaint of owner of, regardling trade restrictions with Sulu Islands, etc., report on: 302-305. Wing, Sam. (See Sam Wing.) Wisconsin: laws relating to treason, etc.: 688. 808 Wood, Maj. Gen. Leonard, Governor General of Cuba: salary of, anl payment out of Cuban revenues: 422-432. duties discharged by: 422. conduct of civil affairs by army officer tolerated, not required: 422. extra services: 422. statement regarding pardon, etc., of prisoners: 507, 508. annulment of contract between Pan-American Express Clompany and United Railways of Habana: 511. Woolf et al.: report on contract with, regarding manufacture and use of electrozone for public purposes in Habana: 451-454. provisions of contract with: 452. action of Secretary of War on application of: 454. Wrecks: on the coast of Cuba the property of the United States: 556. ownership of vessels sunk in Cuban coastal waters by United States naval forces: 555-562. Navy Department has no authority to preserve, etc.: 556. duty of Secretary of War to remove sunken vessels: 556. request of military governor of Cuba for decision as to (lisposition of: 556. proceedings had in the case of the Alfonso XII: 556 et seq. action on application for purchase of: 556. letter from Secretary of the Treasury to Secretary of War: 557. War to Secretary of the Treasury: 557. Colonel Edwards to military governor of Cuba: 557. application of A. Lotinga to State Department for purchase of: 558. provisions of Revised Statutes regarding prize of war: 560. capturedl at sea as prize of war must be brought within jurisdiction of prize court: 559 et seq. provisions of Spanish code of commerce: 561. civil procedure: 561. advisability of (lealing with, as nuisances: 561. instructions to military governor of Cuba from Secretary of WAar: 562. duty collectible on steamer brought into Porto Rico and sold, etc., report on: 619-621. when duty should and should not be collected: 620. approval of views by Secretary of War: 620. Wyoming: extension of Constitution, etc., to: 90. Y. Ylang Ylang tree in the Philippines: abundance of: 608. Young v. United States: confiscation of neutral property: 270. Z. Zanzibar: consular courts in: 59. 0