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 the 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, being subject in respect thereof to such laws as are applicable to other foreigners. 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 citizens of the country 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 footing with the native citizens. 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 surrendered 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 patriæ. In discharging the duties binding upon it as parens patriæ the sovereign utilizes the courts. The duties become incumbent upon the parens patriæ 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? 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. The test is supplied 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 throughout the island. To deny them 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 Martí, 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 Martí 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 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 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 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 fit and to bestow his allegiance upon such sovereign as sees fit to accept his tender. (Secs. 1999 and 2000, U. 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 by which is to be determined the question of whether or not Spanish subjects 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 has expired in which they may make 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 be 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 administer upon the estate of Don Ramon Martí, deceased. 2. That the jurisdiction of said court was not ousted by the demand of the Spanish consul if the said Don Ramon Martí 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 Clara 1. That a presumption arises that said Don Ramon Martí 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. 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 Martí 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 ADMIN- [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 made, 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 estate and assume the powers of administration thereover under the provisions of said circular No. 16. He 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 military channels, with the following indorsement: I therefore request the decision of the Secretary of War as to whether 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 Consular 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 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 them, of any others at their choice. Third. To collect the debts due the deceased in the country where he died and pay the debts due from his estate which he shall have there contracted. Fourth. To sell at auction, after reasonable public 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, at the expiration of one year from his decease, the residue. Fifth. To transmit the balance of the estate to the Treasury of the 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 demand his effects in their hands they shall deliver them up, being paid their fees, and shall cease their proceedings. Circular No. 16, Division of Customs and Insular Affairs, War Department, is as follows: CIRCULAR No. 16, Division of Customs and Insular Affairs. WAR DEPARTMENT, Washington, May 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 |