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 incumbent.

Much less is such contract binding upon a new sovereignty established in the territorial jurisdiction by operation of war. Let us sup

pose 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 may be found in Bank of Columbia v. Oakley, 4 Wheat., 244-245; Hawkins v. Barney, 5 Pet., 466-467; Fletcher v. Peck, 6 Cranch., 143.

Sovereignty of ceded territory is not burdened with the personal contracts entered into by the State from which the territory is severed. (Hall on International Law, 4th ed., sec. 27.)"

But suppose we concede that the complainants 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 war the owner must endure the consequences. He 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 v. Arredonda, 6 Pet., 691; 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

See ante, page 178 et seq.

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.

It is to article 7 and not to article 8 the complainants must look for relief.

There remains for consideration the claim of indebtedness.

As already stated, an owner is not entitled to compensation for damages or loss to property taken or destroyed during war.

The basis of the claim of indebtedness herein is that the rights and privileges of the complainants were abrogated by the Spanish Government before the war; that said abrogation created an indebtedness in favor of these complainants and against the Spanish Government, and that the obligation to pay said debt passed to the succeeding sovereignty in Cuba.

When a sovereign displaces one of the instruments for the exercise of prerogatives the question of indemnity is to be determined by 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 incumbency of offices by sale, and the agitation against it in Spain and the Spanish colonies are of long duration. Naturally the incumbents desired to preserve their privileges or to receive indemnity. As already noted, the royal orders of 1812 and 1813 did not provide for such indemnity. This would excite the enmity of the incumbents and decrease the amount to be realized by the Government from 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 recognized as creditors of the State, viz, all owners of public offices which have been disposed of by the Crown for a consideration and which have been abolished as being incompatible with the Constitution and the law.

If Spanish sovereignty had continued to exercise dominion in Cuba, the situation would be as follows:

The office of high sheriff of Habana would be "abolished as being incompatible with the Constitution and the law," but the complainants would be permitted to enjoy the emoluments 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

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 negotia tions at Paris in 1898 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 complainants would be obliged to look to Congress for 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 liability for indebtedness of the Spanish Government incurred in Cuba is, that questions relating thereto are to be referred to and determined by the future permanent government of the island when that government 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 municipal councils of Cuba (July 27, 1859) contained the following:

ARTICLE 98. Municipalities having purchasable and assignable offices yielding emoluments or fees of any kind whatever shall at once proceed to collect all the information necessary to enable the proper authorities to fix, according to the rules made and provided for the appraisement of double offices, their sale at public auction, and the payment to the royal treasury of the taxes which may be due, what amount shall have to be paid by each; and they shall recommend the manner and form of raising the funds which may be necessary for that purpose, with the understanding that the aforesaid fees and emoluments shall then become municipal property, subject to the provisions made for their preservation or increase.

The complainant, Dr. Don 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 amount of indemnity, the city of Habana is indebted to him in the amount of one-half of the value of the emoluments of the municipal office, ex officio appertaining to the high sheriff of Habana. If I understand this claim, it is based upon the theory that, while Spanish sovereignty prevailed in 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

the courts of Cuba, provided the inhibition contained in order of the military government dated Habana, March 21, 1899, is removed.

It would seem better to test the merits 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 detern ined this application, pursuant to the foregoing report, as follows:

In the matter of the application of the countess of Buena Vista for revocation of certain orders of the military governor of Cuba.

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 Spanish Crown 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 under which 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, right, 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 by the courts of Cuba.

The application for the revocation of the order heretofore made herein by the military governor of Cuba is denied.

DECEMBER 24, 1900.

ELIHU ROOT,
Secretary of War.

In the matter of the application of Dr. Don Gustaro Gallet Duplessis for revocation of certain orders of the military governor 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.

-DECEMBER 24, 1900.

ELIHU ROOT, Secretary of War.

13635-02-14

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 Presi dent of the United States, to regulate commercial 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 hostile, and his determination thereof is binding upon the courts.

4. The customs duties levied on imports and exports at the ports of said archipelago are to be considered 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.

(d) Revenue measures adopted by the Government of terrritory 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.